Exhibit 10.31
AMENDMENT NO. 2 TO WARRANTHOLDERS RIGHTS AGREEMENT
AMENDMENT dated as of January 3, 1997 among Xxxxxxx & Xxxxx, Inc.
(formerly known as WG, Inc.), a Delaware corporation (together with its
successors, "Holdings"), the stockholders of Holdings listed on the signature
pages hereof and the holders of the Warrants listed on the signature pages
hereof.
WHEREAS, the parties hereto have heretofore entered into a
Warrantholders Rights Agreement dated as of July 13, 1994 (as amended by
Amendment No. 1 thereto dated as of February 1, 1996, the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement to provide
for the redemption by Holdings of Warrants exercisable for 110,818.5 shares of
Class C Common Stock;
NOW THEREFORE the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Agreement shall
have the meaning assigned such term in the Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference to
"this Agreement" and each other similar reference contained in the Agreement
shall from and after the effectiveness hereof refer to the Agreement as amended
hereby.
SECTION 2. Amendment of Section 1.1 of the Agreement. (a) The
definition of "Restricted Securities" in Section 1.1 of the Agreement is amended
by deleting the following parenthetical: "(including any notes issued upon
redemption of the Warrants pursuant to Section 5.2(c) thereof)."
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(b) The definition of "Substantial Sale" in Section 1.1 of the
Agreement is amended to replace the reference therein to the "Closing Date (as
such term is defined in the Credit Agreement)" with "July 13, 1994".
(c) The Definition of "Warrant" appearing in Section 1.1 of the
Agreement is amended to read as follows:
"Warrants" means the Warrant or Warrants initially exercisable for
36,939.5 shares of Class C Common Stock represented by the warrant certificates
issued on January 3, 1997, pursuant to the Warrant Redemption Agreement dated as
of December 17, 1997 among Holdings, NationsCredit Commercial Corporation and
Bank of America Illinois, (which represent the unredeemed portion of the
warrants originally issued pursuant to the Credit Agreement, initially
exercisable for 147,758 shares of Class C Common Stock and of which warrants
exercisable for 110,818.5 shares of Class C Common Stock were redeemed pursuant
to the Warrant Redemption Agreement) as such Warrants may be transferred or
otherwise assigned, but only to the extent not theretofore exercised, redeemed
or expired in accordance with their respective terms.
SECTION 3. Amendment of Section 2.8 of the Agreement. Clause (ii) of
Section 2.8 of the Agreement is amended to read as follows: "(ii) a Change of
Control (as defined in the 12.25% Series A Senior Notes of Holdings issued on
January 3, 1997) shall have occured."
SECTION 4. Addition of Section 4.12 to the Agreement. Article 4 of
the Agreement is amended by adding a new Section 4.12 to read in its entirety as
follows:
Provision of Information. Holdings shall send to each of the
Warrantholders each financial statement, report, notice or proxy sent by it or
by any of its subsidiaries to the Stockholders or creditors of Holdings
generally.
SECTION 5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
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SECTION 6. Counterparts; Effectiveness. This Amendment may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Amendment shall become effective when each of the parties hereto shall have
received counterparts hereof executed by each of the parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered as of the date first above written.
XXXXXXX & XXXXX, INC.
By /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman
000 Xxxxx Xx.
Xxxxxxxx, XX 00000
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STOCKHOLDERS
/s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
/s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
/s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
/s/ Xxxxx Xxxxx, Trustee
----------------------------
Name: Xxxxx Xxxxx, as Trustee
of the __________
/S/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
/S/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx, as
Trustee of the Xxxx
X. Xxxxxxx Trust
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WARRANTHOLDERS
NATIONSCREDIT COMMERCIAL
CORPORATION
By
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Title:
BANK OF AMERICA ILLINOIS
By
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Title:
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