EXHIBIT (C)(2): AMENDED AND RESTATED AGREEMENT BETWEEN THE XXXXXX FAMILY AND
THE COMPANY
AMENDED AND RESTATED XXXXXX FAMILY AGREEMENT
This Amended and Restated Xxxxxx Family Agreement (this "Agreement") is
made effective as of June 2, 1997 by and among Xxxxxx-Xxxxxx, Inc. (the
"Company"), and Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx and The Xxxxxx Family Limited
Partnership, which is controlled by Xxxxxxxxx X. Xxxxxx (collectively, the
"Xxxxxx Family").
WHEREAS, the Xxxxxx Family owns 60% of the Common Stock, no par value, of
the Company; and
WHEREAS, the parties hereto previously executed that certain Xxxxxx Family
Agreement effective as of June 2, 1997 and now desire to amend and restate said
Agreement; and
WHEREAS, the Company is making a tender offer to purchase the issued and
outstanding shares of its Common Stock, no par value (the "Offer"), held by
persons or entities who own Common Stock (the "Public Shareholders") at
the price set forth in the Offer to Purchase, including any amendments thereto
(the "Offer Price"); and
WHEREAS, pursuant to the Offer, the Xxxxxx Family has agreed to share with
the Public Shareholders who tender their Shares pursuant to the Offer any Excess
Proceeds (as defined herein), if any, received in the future as a result of
certain change in control transactions as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Xxxxxx Family
hereby agree as follows:
1. DEFINITIONS.
a. "Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company or any successor to the Company
to any "person" (as such term is used in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended); (ii) the adoption of a plan relating to the
liquidation or dissolution of the Company or any successor to the Company; or
(iii) the consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any "person" (as defined
above), other than the Xxxxxx Family or their heirs (including assignees by
inter vivos transfers for estate planning purposes), acquires a direct or
indirect interest in more than 50% of the voting power of the Common Stock of
the Company or any successor to the Company.
b. Unless otherwise defined herein, all initially capitalized terms
herein shall have the same definitions set forth in the Offer to Purchase,
including any amendments thereto, filed by the Company with the Securities and
Exchange Commission.
2. AGREEMENT REGARDING PROCEEDS UPON A CHANGE OF CONTROL. In the event a
Change of Control occurs at any time within the three years following the later
of the date of consummation of the Offer or the date of consummation of the
Merger, the parties agree that if the aggregate amount of proceeds received by
the Xxxxxx
Family as a result of such Change of Control (the "Proceeds") exceeds the
product of the Offer Price multiplied by the 3,901,190 shares currently issued
and outstanding (the "Total Purchase Price"), then any positive difference
between the Proceeds and the Total Purchase Price (the "Excess Proceeds") shall
be distributed by the Company as follows: the Xxxxxx Family shall receive their
proportionate share of the Excess Proceeds (i.e. 60%, collectively) and the
Public Shareholders other than the Xxxxxx Family who tender their Shares
pursuant to the Offer shall receive the remaining amount of the Excess Proceeds
(i.e. 40%, collectively) in proportion to their ownership interests; provided,
however, that in the event that any Public Shareholder tenders only a part of
his Shares pursuant to the Offer, such Shareholder will share the Excess
Proceeds only in the ratio that the Shares tendered bears to the total number of
Shares tendered by all Public Shareholders.
3. TRANSFER OF RIGHTS. This Agreement shall be binding on any heirs,
successors or permitted assigns of the parties.
4. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other agreement
whether oral or written. This Agreement supersedes any prior written or oral
agreements between the parties.
5. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions shall continue
to be valid and enforceable. If a court finds that any provision of this
Agreement is invalid or unenforceable, but that by limiting such provision it
would become valid or enforceable, then such provision shall be deemed to be
written, construed, and enforced as so limited.
6. TERM. This Agreement shall terminate three years following the later
of the date of consummation of the Offer or the date of consummation of the
Merger.
7. APPLICABLE LAW. This Agreement shall be governed by and construed
according to the laws of the State of Texas.
XXXXXX-XXXXXX, INC.
/s/ XXXXXX X. XXXXXX
By: ____________________________________________
Xxxxxx X. Xxxxxx
Name: ___________________________________________
Chairman of the Board
Its: ____________________________________________
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
The Xxxxxx Family Limited Partnership
/s/ XXXXXXXXX X. XXXXXX
By: ----------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Its: Managing General Partner
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