FIFTH AMENDMENT TO STOCK SUBSCRIPTION AGREEMENT
FIFTH AMENDMENT (this "Amendment"), dated as of January 29, 1997, by
and among Xxxxxx Holdings, Inc., a Delaware corporation (the "Issuer"), Xxxxxx
International, Inc., a Delaware corporation ("Xxxxxx"), and the persons listed
on the signature pages hereof as "Investors", to the Stock Subscription
Agreement referred to below.
PRELIMINARY STATEMENTS
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The Issuer, Xxxxxx and the investors named on the signature pages
thereof executed a Stock Subscription Agreement dated as of August 1, 1989, as
amended by the Amendment to the Stock Subscription Agreement to Add a Party,
dated August 14, 1992, and by the Second Amendment to Stock Subscription
Agreement, dated as of March 16, 1993, and by the Third Amendment to Stock
Subscription Agreement, dated May 6, 1996, and by the Fourth Amendment to
Stock Subscription Agreement, dated as of May 31, 1996 (as so amended, the
"Stock Subscription Agreement").
The parties hereto wish to further amend the Stock Subscription
Agreement as set forth herein.
AGREEMENT
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In consideration of the mutual covenants contained in this Amendment
and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, pursuant to Section 12.6(b) of the Stock Subscription
Agreement, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used
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herein are used as defined in the Stock Subscription Agreement.
2. Amendments.
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(a) Section 1.1 of the Stock Subscription Agreement shall be amended
to modify the definition of "Management Investors" to read as follows:
"'Management Investors' means each of Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, F.
Xxxxx Xxxxx and Xxxxxxx X. Xxxxxxxxx."
(b) Section 1.1 of the Stock Subscription Agreement shall be amended
to insert the following new definition immediately following the definition of
NASD:
"'New Stockholders' Agreement' means the Stockholders' Agreement dated as of
January 29, 1997 by and among the Company and the investors listed therein
which amends and supersedes in all respects the Stockholders' Agreement."
(c) Section 9.3(a)(iii) of the Stock Subscription Agreement shall be
amended in its entirety to read as follows:
"(iii) at any time by any Holder to any Person; provided that (A) the
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transfer is made pursuant to, and subject to any applicable limitations of
Article III of the New Stockholders' Agreement, and (B) such Person becomes a
Holder pursuant to Section 12.10 hereof;"
(d) Section 9.4 of the Stock Subscription Agreement shall be deleted
in its entirety.
(e) Article XI of the Stock Subscription Agreement shall be deleted
in its entirety.
(f) All references to the Stockholders' Agreement in the Stock
Subscription Agreement shall mean the New Stockholders' Agreement.
(g) Section 12.11 of the Stock Subscription Agreement shall be amended
in its entirety to read as follows:
"SECTION 12.11. Termination. All rights, restrictions and
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provisions set forth in this Agreement shall lapse upon the earlier to occur
of (A) the Initial Public Offering, (B) the vote in favor of terminating this
Agreement by the Majority Holders and the majority of Management Holders at
the time of termination or (C) the fifth anniversary of the Initial Closing
Date (as defined in the New Stockholders' Agreement)."
3. Release of Rights and Restrictions. On and after the date of this
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Amendment: (a) the only parties to the Stock Subscription Agreement shall be
the Issuer, Xxxxxx, the Management Holders and those Persons that thereafter
are made a party to the Stock Subscription Agreement pursuant to Section 12.12
thereof, and (b) no Common Shares or options of any Person other than a
Management Holder shall be bound by the restrictions and limitations of the
Stock Subscription Agreement.
4. Continuing Effect; Amendment Limited. This Amendment is limited as
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specified and shall not constitute a modification, acceptance or waiver of any
other provision of the Stock Subscription Agreement. From and after the date
of the effectiveness of this Amendment, all references in the Stock
Subscription Agreement to the "Agreement" shall be deemed to be references to
the Stock Subscription Agreement after giving effect to this Amendment.
5. Counterparts. This Amendment may be executed in any number of
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counterparts and by the different parties hereto on separate counterparts,
each of which counterparts when executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
6. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
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PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
7. Effectiveness. This Amendment shall become effective on the date on
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which each of the Issuer, the Majority Holders and a majority of the
Management Holders shall have signed a copy hereof (whether the same or
different copies) and shall have delivered the same to the Issuer.
IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to
be executed by a duly authorized officer as of the date set forth above.
XXXXXX HOLDINGS, INC.
By: ____________________________
Its: ____________________________
MLGA FUND II, L.P.
By: MLGAL Partners
By: _______________________________
Its: General Partner
MLGAL PARTNERS LIMITED PARTNERSHIP
By: _______________________________
Its: General Partner
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
/s/ Xxxxxxx Xxx
Xxxxxxx Xxx
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
/s/ Xxx Xxxxx
Xxx Xxxxx
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
/s/ F. Xxxxx Xxxxx
F. Xxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
