Exhibit 4.8
AMENDMENT
Amendment dated as of January 26, 2000 to the Fifth Amended and
Restated Stockholders' Agreement dated as of July 29, 1999 by and among VANTAS
Incorporated, a Nevada corporation (the "Company"), and the Securityholders
identified therein, as further amended by an amendment thereto dated as of
November 22, 1999 (collectively, the "Agreement"). Unless otherwise defined,
all capitalized terms used herein shall have the meaning ascribed to them in
the Agreement.
The undersigned, acting in accordance with Section 9.13 of the
Agreement, hereby further amend the Agreement as follows:
1. Section 1.1(ww) is amended and restated in its entirety to read
as follows:
"(ww) "Series A, B and E Preferred Directors" shall mean the
Series C and D Preferred Directors."
2. The first sentence of Section 2.1(a) is amended and restated in
its entirety to read as follows:
"(a) The Board shall consist of ten Directors, (i) one
Director nominated by Xxxxx X. Xxxxx (which nominee shall be Xxxxx
X. Xxxxx) (the "Company Director") and (ii) nine Directors
(collectively, the "Series C and D Preferred Directors") nominated
by holders of a Majority of the Shares of Series C and D Preferred
Stock."
3. The second sentence of Section 2.1(a) is amended and restated in
its entirety to read as follows:
"The Chairman of the Board shall be a Series C and D
Preferred Director nominated by the holders of a Majority of the
Shares of Series C and D Preferred Stock."
4. Section 2.1(b) is amended and restated in its entirety to read as
follows:
"(b) [Intentionally omitted.]"
5. The first sentence of Section 2.1(c) is amended and restated in
its entirety to read as follows:
"(c) Notwithstanding anything to the contrary
contained herein, (i) Xxxxx X. Xxxxx shall have the rights set
forth herein to nominate the Company Director only so long as he
maintains Beneficial Ownership of at least 50% of the Common Stock
Equivalents held by him as of July 29, 1999 and the Xxxxx
Employment Agreement has not been terminated by the Company for
Cause (as defined therein); provided, however, that so long as
Xxxxx X. Xxxxx is the Chief Executive Officer of the Company he
shall serve as a Director and (ii) the holders of a Majority of the
Shares of Series C and D Preferred Stock shall have the rights set
forth herein to nominate the Series C and D Preferred Directors and
to designate the Chairman of the Board, and the Series C and D
Preferred Directors shall have the right to nominate members of the
Committees described in Section 2.3 hereof, only so long as the
Qualifying Series C and D Beneficial Holders maintain Beneficial
Ownership of at least 20% of the Series C and D Adjusted Fully
Diluted Capitalization."
6. The second sentence of Section 2.1(c) is amended and restated in
its entirety to read as follows:
"If either Xxxxx X. Xxxxx or the Series C and D Holders loses
the right to designate Director(s), the Director(s) which such
Securityholder had been entitled to designate shall promptly resign
and the vacancy or vacancies, as the case may be, created by such
resignation(s) shall be filled by the stockholders of the Company
voting at a special or general meeting or by written consent in
lieu of any such meeting at any time after the consummation of the
transaction or occurrence of the event in which either Xxxxx X.
Xxxxx or the Series C and D Holders lost the right to designate
Director(s)."
7. Section 2.1(d) is amended and restated in its entirety to read as
follows:
"(d) [Intentionally omitted.]"
8. Section 2.1(e) is amended and restated in its entirety to read as
follows:
"(e) [Intentionally omitted.]"
9. Section 2.1(g) is amended and restated in its entirety to read as
follows:
"(g) Term. Each of the Company Director and the Series C and
----
D Preferred Directors shall hold office as a Director of the
Company for a term of one year."
10. The language preceding clause (i) contained in Section 2.2 is
amended and restated in its entirety to read as follows:
"No Securityholder shall vote any Shares, and no Director
shall vote, in favor of the removal of a Director designated by
Xxxxx X. Xxxxx or the Series C and D Holders unless"
11. The first sentence of Section 2.3(a) is amended and restated in
its entirety to read as follows:
"(a) The Executive Committee of the Board shall consist of
the following five Directors: (i) the Company Director and (ii)
four Directors nominated by the Series C and D Preferred
Directors."
12. The first sentence of Section 2.3(b) is amended and restated in
its entirety to read as follows:
"(b) The Audit Committee of the Board shall consist of four
Directors nominated by the Series C and D Preferred Directors, at
least two of whom shall not be officers or employees of the
Company."
13. The first sentence of Section 2.3(c) is amended and restated in
its entirety to read as follows:
"(c) The Compensation Committee of the Board shall consist of
the four Directors nominated by the Series C and D Preferred
Directors, at least two of whom shall not be officers or employees
of the Company."
14. The last sentence of Section 2.6 is deleted in its entirety.
15. The first sentence of Section 3.1 is amended and restated in its
entirety to read as follows:
"None of the following actions shall be taken by the Company
or any of its Controlled Affiliates without Super-Majority Approval
(provided that if at the time of the proposed action the Qualifying
Series C and D Beneficial Holders do not have aggregate Beneficial
Ownership of at least 20% of the Series C and D Adjusted Fully
Diluted Capitalization, then the approval of a majority of the
Series C and D Preferred Directors shall not be required as part of
the Super-Majority Approval):"
16. Notwithstanding the terms and provisions of Section 4.7
including, without limitation, Section 4.7(a), the Xxxxx Put (i) shall apply
solely to Options granted to Xxxxx under the Company's 1999 Stock Option Plan
which remain unvested on the effective date of the termination of Xxxxx'x
employment with the Company and (ii) shall be of no further force and effect
with respect to any other Xxxxx Securities.
17. The terms and provisions of Section 9.17 shall no longer apply
to the JAH Beneficial Holders.
Except as expressly amended hereby, all of the terms, conditions and
provisions of the Agreement shall remain in full force and effect.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the undersigned have executed or caused the
execution of this Agreement in one or more counterparts as of the date first
above written.
/s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx
RSI I/O HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
RECKSON SERVICE INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
RECKSON OFFICE CENTERS LLC
By: RSI I/O HOLDINGS, INC.
Managing Member
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
INTEROFFICE SUPERHOLDINGS LLC
By: RSI I/O HOLDINGS, INC.
Managing Member
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
VANTAS INCORPORATED
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: President,
Chief Executive Officer
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
XXXXX XXXXXXX XXX ROLLOVER
By:_________________________________
Name:
Title:
