Exhibit 10.26
FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT
effective as of February 16, 2001
This First Amendment (this "Amendment"), effective as of February 16, 2001
to the STOCKHOLDERS' AGREEMENT, dated as of March 30, 1999 (the "Stockholders'
Agreement"), among Xxxxxx Technologies, Inc., a New York corporation (the
"Company"), Xxxxx X. Xxxxxx ("KJZ"), Xxxxxx X. Xxxxxx ("TPZ") and Xxxxxxx X.
Xxxxxxxxxxx ("Xxxxxxxxxxx" and, collectively with KJZ and TPZ, "Management"),
and Xxxxxxx US Discovery Fund III, L.P. and Xxxxxxx US Discovery Offshore Fund
III, L.P. (collectively, the "Xxxxxxx Funds").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company, Management and the Xxxxxxx Funds are parties to the
Stockholders' Agreement;
WHEREAS, pursuant to the Stock Purchase Agreements, dated as of March 30,
1999, between the Company and each of the Xxxxxxx Funds (the "Stock Purchase
Agreements"), the Xxxxxxx Funds purchased 65,000 shares of the Company's Series
A Convertible Preferred Stock, par value $.01 per share (the "Series A Preferred
Stock");
WHEREAS, the Company and the Xxxxxxx Funds entered into Stock Purchase
Agreements, dated as of February 16, 2001 (the "2001 Stock Purchase
Agreements"), whereby the Xxxxxxx Funds purchased 30,000 shares of the Company's
Series A Convertible Preferred Stock, par value $.01 per share; and
WHEREAS, pursuant to Section 6(a) of the Stockholders' Agreement, the
Company, Management and the Xxxxxxx Funds desire to amend the definition of
"Series A Preferred Stock" in the first WHEREAS clause of the Stockholders'
Agreement to include the shares purchased pursuant to the 2001 Stock Purchase
Agreements;
NOW, THEREFORE, in consideration of the foregoing and of the covenants and
agreements contained herein and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Stockholders' Agreement. Capitalized terms
defined in this Amendment shall be deemed to be defined in the Stockholders'
Agreement with the meaning given to them herein.
In the event of any inconsistency between the definitions, terms or provisions
of this Amendment and of the Stockholders' Agreement, this Amendment shall
control.
2. The first WHEREAS clause of the Stockholders' Agreement is hereby
deleted and replaced in its entirety with the following:
"WHEREAS, pursuant to the terms of Stock Purchase Agreements, dated as of
March 30, 1999 (the "1999 Stock Purchase Agreements"), and the Stock
Purchase Agreements, dated as of February 16, 2001 (the "2001 Stock
Purchase Agreements" and, together with the 1999 Stock Purchase Agreements,
the "Stock Purchase Agreements"), the Xxxxxxx Funds have purchased 65,000
shares and 30,000 shares, respectively, of the Company's Series A Preferred
Stock, par value $.01 per shares (the "Series A Preferred Stock")."
3. The third WHEREAS clause of the Stockholders' Agreement is hereby
deleted and replaced in its entirety with the following:
"WHEREAS, it was a condition precedent to the Company's and the Xxxxxxx
Fund's respective obligations to consummate the transactions contemplated
by the Stock Purchase Agreements that the parties hereto shall have entered
into this Agreement; and"
4. Section 6(d)(ii) of the Stockholders Agreement is hereby deleted and
replaced in its entirety with the following:
"If to the Company, to:
Xxxxxx Technologies, Inc.
000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxxxx
with a copy to:
Blank Rome Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Ethan Seer, Esq."
5. The Stockholders' Agreement shall remain in full force and effect in
accordance with its terms, except as expressly amended hereby.
6. This Amendment may be executed in one or more counterparts, which
together will constitute a single agreement.
7. This Amendment shall be governed by and construed in accordance with the
laws of the State of New York.
8. This Amendment, together with the Stockholders' Agreement and all
agreements or documents herein or therein referred or incorporated by reference,
contains the entire agreement between the parties with respect to the subject
matter hereof and supersedes any and all prior agreements and understandings,
oral or written, with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the
date first written above.
XXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
/s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxxxxx
XXXXXXX US DISCOVERY FUND III, L.P.
By: XXXXXXX US DISCOVERY
PARTNERS, L.P.,
its general partner
By: XXXXXXX US DISCOVERY, LLC, its
general partner
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx, member
XXXXXXX US DISCOVERY OFFSHORE
FUND III, L.P.
By: XXXXXXX US DISCOVERY
PARTNERS, L.P.,
its general partner
By: XXXXXXX US DISCOVERY, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx, member
