EXHIBIT 10.24
XXXXX HOLDINGS, INC.
AMENDMENT NUMBER 1 TO PURCHASE AGREEMENT
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This Amendment Number 1 to Purchase Agreement (this "Amendment"), is
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made as of June 11, 1998, by and among Xxxxx Holdings, Inc., a Nevada
corporation (the "Company"), and the Persons listed on the signature pages
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hereto as Purchasers (collectively, the "Purchasers").
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Reference is made to (i) that certain Purchase Agreement dated
December 16, 1997, by and among the Company and the Purchasers (the "Purchase
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Agreement"), (ii) that certain Notice to Purchasers of Subsequent Closing dated
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March 16, 1998, by and among the Company and the Purchasers (the "First
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Subsequent Closing Notice") and (iii) that certain Notice to Purchasers of
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Subsequent Closing dated April 2, 1998, by and among the Company and the
Purchasers (the "Second Subsequent Closing Notice"). The Company and the
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Purchasers desire to amend the Purchase Agreement, the First Subsequent Closing
Notice and the Second Subsequent Closing Notice, on the terms and subject to the
conditions set forth herein. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Purchase Agreement.
Now therefore, the parties intending to be legally bound hereby agree
as follows.
1. Section 7P of the Purchase Agreement is hereby amended in its entirety
to read as follows:
"Consideration for Warrants. The Purchasers and the Company
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acknowledge and agree that as of the date hereof the fair market
value of the maximum number of shares of Class A Preferred which
may be issued hereunder is $19,404,105 and the fair market value
of the maximum number of shares of Common Stock issuable upon
exercise of the Warrants which may be issued hereunder is
$595,895 and that, for all purposes (including tax and
accounting), the consideration for the issuance of the Warrants
shall be allocated by each Purchaser and the Company as set forth
on the Schedule of Purchasers attached hereto. Each Purchaser and
the Company shall file their respective federal, state and local
tax returns in a manner which is consistent with such valuation
and allocation and shall not take any contrary position with any
taxing authority."
2. The Schedule of Purchasers attached to the Purchase Agreement is
hereby amended in its entirety to read as set forth on Annex A attached hereto.
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3. The Subsequent Closing Schedule attached to the Purchase Agreement is
hereby amended in its entirety to read as set forth on Annex B attached hereto.
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4. The Schedule of Purchasers attached to the First Subsequent Closing
Notice is hereby amended in its entirety to read as set forth on Annex C
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attached hereto.
5. The Schedule of Securities Available for Purchase After March 18, 1998
Closing attached to the First Subsequent Closing Notice is hereby amended in its
entirety to read as set forth on Annex D attached hereto.
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6. The Schedule of Purchasers attached to the Second Subsequent Closing
Notice is hereby amended in its entirety to read as set forth on Annex E
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attached hereto.
7. The Schedule of Securities Available for Purchase After April 2, 1998
Closing attached to the Second Subsequent Closing Notice is hereby amended in
its entirety to read as set forth on Annex F attached hereto.
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8. Except as set forth herein, no provision of the Purchase Agreement,
First Subsequent Closing Notice or Second Subsequent Closing Notice shall be
deemed to be amended or modified in any respect.
9. This Amendment may be executed in any number of separate counterparts
(including by means of facsimile transmission), each of which shall be deemed an
original and all of which when taken together shall constitute one and the same
agreement.
* * * *
-2-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
XXXXX HOLDINGS, INC.
By: /s/ Xxxx X. Xxxx
Its: President
PURCHASERS
XXXXXX CAPITAL 1330
INVESTORS I, LP
By: XXXXXX CAPITAL 1330
GENPAR I, LLC
Its. General Partner
By: /s/ Xxxxxx Xxxxxxxx
Its: Manager
MADISON DEARBORN CAPITAL PARTNERS, L.P.
By: MADISON DEARBORN PARTNERS,
L.P.
Its: General Partner
By: MADISON DEARBORN PARTNERS,
INC.
Its: General Partner
By: /s/ Xxxx X. Xxxx
Its: Vice President
ANNEX A
SCHEDULE OF PURCHASERS
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Total No. of
No. of Purchase Shares
Shares Price issuable
of for upon Purchase
Names and Class A Class A Exercise of Price for
Addresses Preferred Preferred Warrant Warrant
--------- --------- --------- ------- ---------
Madison Dearborn Capital Partners, L.P. 3,500 $3,395,718 104,282 $104,282
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxx
Xxxxxx Capital 1330 Investors I, LP 6,000 $5,821,231 178,769 $178,769
c/o Abbott Capital Management, LLC
1330 Avenue of the Americas, Suite 2800
Attn: Xxxxxx X. Xxxxxxxx
________ __________ ________ ________
TOTAL 9,500 $9,216,949 283,051 $283,051
ANNEX B
SUBSEQUENT CLOSING SCHEDULE
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Total No. of
No. of Purchase Shares
Shares Price issuable
of for upon Purchase
Names and Class A Class A Exercise of Price for
Addresses Preferred Preferred Warrant Warrant
--------- --------- --------- ------- -------
Madison Dearborn Capital Partners, L.P. 1,500 $ 1,455,308 44,692 $ 44,692
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxx
Xxxxxx Capital 1330 Investors I, LP 9,000 $ 8,731,848 268,152 $268,152
c/o Abbott Capital Management, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx 0000
Attn: Xxxxxx X. Xxxxxxxx
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TOTAL 10,500 $10,187,156 312,844 $312,844
ANNEX C
SCHEDULE OF PURCHASERS
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MARCH 18, 1998
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Total No. of
No. of Purchase Shares
Shares Price issuable
of for upon Purchase
Names and Class A Class A Exercise of Price for
Addresses Preferred Preferred Warrant Warrant
---------- --------- --------- ------- ---------
Madison Dearborn Capital Partners, L.P. -0- -0- -0- -0-
Three First Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxx
Xxxxxx Capital 1330 Investors I, LP 4,250 $4,123,373 126,627 $126,627
c/o Abbott Capital Management, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx
0000
Attn: Xxxxxx X. Xxxxxxxx
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TOTAL 4,250 $4,123,373 126,627 $126,627
ANNEX D
SCHEDULE OF SECURITIES AVAILABLE
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FOR PURCHASE AFTER MARCH 18, 1998 CLOSING
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No. of
Total Shares
No. of Purchase issuable
Shares Price upon
of for Exercise Purchase
Names and Class A Class A of Price for
Addresses Preferred Preferred Warrant Warrant
---------------------------------------- --------- --------- ------- --------
Madison Dearborn Capital Partners, L.P. 1,500 $1,455,308 44,692 $ 44,692
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxx
Xxxxxx Capital 1330 Investors I, LP 4,750 $4,608,475 141,525 $141,525
c/o Abbott Capital Management, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx 0000
Attn: Xxxxxx X. Xxxxxxxx
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TOTAL 6,250 $6,063,783 186,217 $186,217
ANNEX E
SCHEDULE OF PURCHASERS
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APRIL 2, 1998
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Total No. of
No. of Purchase Shares
Shares Price issuable
of for upon Purchase
Names and Class A Class A Exercise of Price for
Addresses Preferred Preferred Warrant Warrant
----------------------------------------- --------- --------- ----------- ---------
Madison Dearborn Capital Partners, L.P. -0- -0- -0- -0-
Three First Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxx
Xxxxxx Capital 1330 Investors I, LP 250 $242,551 7,449 $7,449
c/o Abbott Capital Management, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx
0000
Attn: Xxxxxx X. Xxxxxxxx
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TOTAL 250 $242,551 7,449 $7,449
ANNEX F
SCHEDULE OF SECURITIES AVAILABLE
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FOR PURCHASE AFTER APRIL 2, 1998 CLOSING
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No. of
Total Shares
No. of Purchase issuable
Shares Price upon
of for Exercise Purchase
Names and Class A Class A of Price for
Addresses Preferred Preferred Warrant Warrant
----------------------------------------- --------- --------- ------- ---------
Madison Dearborn Capital Partners, L.P. 1,500 $1,455,308 44,692 $ 44,692
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxx
Xxxxxx Capital 1330 Investors I, LP 4,500 $4,365,924 134,076 $134,076
c/o Abbott Capital Management, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx 0000
Attn: Xxxxxx X. Xxxxxxxx
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TOTAL 6,000 $5,821,232 178,768 $178,768
