AMENDMENT NO. 1 TO
INVESTORS' AGREEMENT
This Amendment No. 1 to Investors' Agreement (this "Amendment") is made and
entered into as of February 28, 2000, by and among Xxxxxxx Corporation and the
investors listed on the signature page hereto.
WHEREAS, the parties hereto have entered into an Investors' Agreement dated
as of November 23, 1999 (the "Agreement") which they desire to amend pursuant to
the terms and conditions hereof;
WHEREAS, the undersigned represent at least 75% of the outstanding Shares;
and
WHEREAS, capitalized terms not defined in this Agreement shall have the
meaning assigned to such terms in the Agreement.
Accordingly, and in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
1. The first sentence of Section 5.02(a) of the Agreement shall be
amended in its entirety as follows (for XXXXX filing, language that will be
added is preceded by a ""<*>'' and followed by a ""''. Language that will
be eliminated is preceded by a ""<#>'' and followed by a ""''.[qs][ci]
If the Company proposes to register any Company Securities under the
Securities Act (other than a registration (A) on Form S-8 or S-4 or any
successor or similar forms, (B) relating to Common Shares issuable upon
exercise of employee stock options or in connection with any employee
benefit or similar plan of the Company<*>,<#> or (C) in
connection with the issuance of securities in exchange for existing
securities in connection with an acquisition by the Company of another
company <*>or (D) relating to the Senior Notes Warrants and/or the
Common Shares issuable upon exercise of the Senior Notes Warrants),
whether or not for sale for its own account, it will each such time,
subject to the provisions of Section 5.02(c), give prompt written notice
at least 20 days prior to the anticipated filing date of the
registration statement relating to such registration to each DLJ Entity
and each Other Stockholder, which notice shall set forth such
Stockholder's rights under this Section 5.02 and shall offer such
Stockholders the opportunity to include in such registration statement
such number of Registrable Securities of the same type as are proposed
to be registered as each such Stockholder may request (a "PIGGYBACK
REGISTRATION").
2. All remaining terms of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
XXXXXXX CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
DLJ MERCHANT BANKING PARTNERS II, L.P.
BY DLJ MERCHANT BANKING II, INC.
Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Managing Director
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
BY DLJ MERCHANT BANKING II,
INC., Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Managing Director
DLJ OFFSHORE PARTNERS II, C.V.
BY DLJ MERCHANT BANKING II,
INC., Advisory General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Managing Director
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DLJ DIVERSIFIED PARTNERS, L.P.
BY DLJ DIVERSIFIED PARTNERS,
INC., Managing General Partner
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ DIVERSIFIED PARTNERS-A, L.P.
BY DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJMB FUNDING II, INC.
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ EAB PARTNERS, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, General Partner
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President
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DLJ MILLENNIUM PARTNERS, L.P.
BY DLJ MERCHANT BANKING II,
INC., Managing General Partner
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ FIRST ESC, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ ESC II L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ MILLENNIUM PARTNERS-A, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Managing Director
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/s/ Xxxx X. Xxxxxx
---------------------------------
XXXX X. XXXXXX
/s/ Xxxx X. Xxxxxxxxx
---------------------------------
XXXX X. XXXXXXXXX
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