Exhibit 10.67
AMENDMENT TO INVESTMENT AGREEMENT
THIS AMENDMENT TO INVESTMENT AGREEMENT (the "Amendment") is made and
entered into as of March __, 2001, by and between LIH HOLDINGS IV, LLC, a
Delaware limited liability company (the "Purchaser") and XXXX INTERNATIONAL
HOLDINGS, INC., a Delaware corporation (the "Company"). Capitalized terms not
defined herein shall have those meanings ascribed to them in the Investment
Agreement (defined below).
WHEREAS, the parties entered into that certain Investment Agreement
dated as of December 28, 2000 (the "Investment Agreement");
WHEREAS, the Capital Call Agreement has been amended as of the date
hereof;
WHEREAS, the parties desire to amend the Investment Agreement to
reflect the amendments made to the Capital Call Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
A. Section 1.1 of Article I is hereby amended to delete the definition of
Closing Date and to insert in its place the following definition: "`Closing
Date' means the date on which the Initial Closing, the Second Closing, or the
Third Closing, as applicable, actually occurs."
B. Section 1.1 of Article I is hereby amended to insert (alphabetically among
the existing definitions) the following definitions:
1. "Third Capital Call" has the meaning ascribed to it in Section 2.1
2. "Third Closing" means the closing of the transactions contemplated
by Section 2.4.
3. "Third Closing Date" means the date on which the Third Closing
actually occurs.
4. "Third Purchase Price" has the meaning ascribed to it in Section
2.1
C. Section 2.1 is herby amended by deleting the last sentence and inserting the
following:
"If required under the Capital Call Agreement, the Company shall
subsequently issue and sell to the Purchaser, and the Purchaser shall
subsequently purchase from the Company, 1,562.5 additional shares of Series C
Preferred Stock (the "Third Capital Call"), free and clear of all Liens, for an
aggregate purchase price (payable in cash in the manner provided in Section 2.2)
equal to $1,562,500 (the "Third Purchase Price"). The shares of Series C
Preferred Stock to be
issued in the Initial Capital Call, Second Capital Call and Third Capital Call
are collectively referred to herein as the "Shares" and the Initial Purchase
Price, Second Purchase Price and Third Purchase Price are collectively referred
to herein as the "Purchase Price."
D. The following is hereby inserted as Section 2.4:
"2.4 Third Closing. The Third Closing, if required under the Capital
Call Agreement, shall take place at such location as the parties mutually agree
on the date on which each of the conditions precedent set forth in Article VI
and Article VII shall have been satisfied or waived as provided therein. At the
Third Closing, the Purchaser shall pay the Third Purchase Price by wire transfer
of immediately available funds to the account specified by the Company by
written notice delivered to the Purchaser at least two (2) Business Days before
the Third Closing Date. Simultaneously, the Company shall deliver to the
Purchaser certificates, registered in the name of the Purchaser, representing
the shares of Series C Preferred Stock issued in the Third Capital Call."
E. In Section 3.3, the following is hereby deleted:
"(ii) the outstanding capital stock of the Company will consist of 9,368,000
shares of Common Stock, 167,000 shares of Series B Preferred Stock and 5,000
shares of Series C Preferred Stock (upon the Initial Closing) and 10,000 shares
of Series C Preferred Stock (upon the Second Closing)."
"and (iii) 167,000 shares of Series B Preferred Stock are outstanding."
and in its, place, the following is hereby inserted:
"(ii) the outstanding capital stock of the Company will consist of 10,267,325
shares of Common Stock, 167,000 shares of Series B Preferred Stock and 5,000
shares of Series C Preferred Stock (upon the Initial Closing), 10,000 shares of
Series C Preferred Stock (upon the Second Closing) and 11,562.5 shares of Series
C Preferred Stock (upon the Third Closing)."
"and (iii) 77,515.8 shares of Series B Preferred Stock outstanding."
D. Except as amended hereby, the Investment Agreement shall stand and remain
unchanged and in full force and effect in accordance with its terms.
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IN WITNESS WHEREOF, this Amendment has been duly executed
and delivered by the duly authorized officer of each
party hereto as of the date first above written.
LIH HOLDINGS IV, LLC
By: Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
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Title:
XXXX INTERNATIONAL HOLDINGS, INC.
By: Xxxxxx Vollmershausen
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Name: Xxxxxx X. Vollmershausen
Its: President and Chief Executive Officer
