EXHIBIT 10.30
FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT
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This First Amendment to Stockholders' Agreement (this "Amendment") is
entered into as of the 19th day of September, 1997, by and among the parties
listed on the signature pages hereto, and Xxxxxxxx Manufacturing Company, Inc.,
a Texas corporation, and its successors, whether by operation of law or
otherwise (the "Company").
RECITALS
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WHEREAS, certain stockholders of the Company and the Company are
parties to a Stockholder' Agreement (the "Stockholders' Agreement") dated July
1, 1997;
WHEREAS, Dogloo, Inc., a California corporation ("Dogloo"), plans to
merge with and into the Company with the Company as the surviving corporation
(the "Merger") and, in connection with the Merger, Westar Capital, a California
limited partnership ("Westar Capital"), Westar Capital II, LLC, a Delaware
limited liability company ("Westar LLC"), and HBI Financial Inc., a Washington
corporation ("HBI"), shall become owners of shares of Company Stock (as defined
in the Stockholders' Agreement); and
WHEREAS, all the parties hereto desire to enter into this Amendment
for the purpose of amending the Stockholders' Agreement, such amendment to be
effective concurrent with the consummation of the Merger;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto covenant and
agree as follows:
1. Definitions.
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Capitalized terms not otherwise defined herein shall have the meanings
ascribed to such terms in the Stockholders' Agreement.
2. Change to Preamble.
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The reference in the first paragraph of the Stockholders' Agreement to
Section XV.A is hereby changed to XIV.A.
3. Change to General Provisions--Termination.
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The reference in the last sentence of Section XIV.L ("General Provisions--
Termination") to Section VIII is hereby changed to VII.
4. Joinder by Westar Capital and Westar LLC.
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In connection with the transactions contemplated by the Merger, Westar
Capital, Westar LLC and HBI shall receive shares of Company Stock and, on the
receipt of such shares and the effectiveness of this Amendment, Westar Capital,
Westar LLC, and HBI shall be deemed to have become a party to and be bound by
the Stockholders' Agreement, as amended hereby. Westar Capital, Westar LLC and
HBI shall, in accordance with Section XIV of the Stockholders' Agreement, upon
receipt of shares of Company Stock execute a joinder in the form of Exhibit B
to the Stockholders' Agreement further evidencing their agreement to be a party
to and bound by the Stockholders' Agreement.
5. Preemptive Rights.
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Each of the entities comprising the Enterprise Partners, Westar Capital,
Westar LLC and HBI hereby agree that their respective preemptive rights, if any,
shall be governed by that certain Amended and Restated Securityholders Agreement
(the "Amended and Restated Securityholders Agreement") to which each of the
entities comprising Enterprise Partners, Westar Capital, Westar LLC and HBI are
parties, rather than by the Stockholders' Agreement.
6. Rights of First Offer.
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Each of the entities comprising the Enterprise Partners, Westar Capital and
Westar LLC hereby agree that any shares of Company Stock offered for sale to
Enterprise Partners, Westar Capital or Westar LLC pursuant to Section III of the
Stockholders' Agreement shall be allocated among Westar Capital, Westar LLC, and
HBI and the entities comprising Enterprise Partners based on their pro rata
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ownership of shares of Company Stock at the time of such offer. EMPC, EPIII,
EPIIIA, EPIV and EPIVA hereby further acknowledge and agree that this Section 6
of this Amendment shall constitute the "agreement among such entities" regarding
allocation of the Noticed Shares referenced in Section III.C of the
Stockholders' Agreement.
7. Tag-Along Rights.
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Xxxxxxxx acknowledges that pursuant to the Amended and Restated
Securityholders Agreement, the entities comprising the Enterprise Partners,
Westar Capital, Westar LLC and HBI have granted to certain other stockholders of
Dogloo certain tag-along rights. Notwithstanding the provisions of Section IV
of the Stockholders' Agreement, Xxxxxxxx and each Xxxxxxxx Transferee hereby
acknowledges and agrees that in the event of a transfer sale or other
disposition of shares of Company Stock following the Merger by any stockholder
of the Company (other than Xxxxxxxx or a Xxxxxxxx Transferee) to which the pro
rata sharing provisions of Section IV of the Stockholders' Agreement would
otherwise apply, the number of shares that Xxxxxxxx and the Xxxxxxxx Transferees
shall be permitted to sell in such transaction shall be determined in accordance
with Section 4.3 of the Amended and Restated Securityholders Agreement as if
Xxxxxxxx and the Xxxxxxxx Transferees were treated as an
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"Other Securityholder" under that Agreement. The remaining other provisions of
Section IV of the Stockholders' Agreement with regard to a tag-along rights
shall continue to apply.
8. Piggy-Back Registration.
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Xxxxxxxx acknowledges that the parties to the Amended and Restated
Securityholders Agreement have certain registration rights as set forth therein
in the event of an underwritten public offering of the Company's capital stock.
Accordingly, notwithstanding Section 2.A. of the Registration Rights Agreement
which is attached as Exhibit A to the Stockholders' Agreement, Xxxxxxxx and each
Xxxxxxxx Transferee hereby acknowledges and agrees that in the event of an
underwritten public offering in which the Company and holders of Company Stock
elect to register a greater number of shares than allowed by the managing
underwriter, then the number of shares that Xxxxxxxx and each Xxxxxxxx
Transferee shall be permitted to register in such transaction shall be
determined in accordance with Section 5.2 of the Amended and Restated
Securityholders Agreement, as if Xxxxxxxx were treated as a "Securityholder"
under that Agreement. Thus, Xxxxxxxx and each Xxxxxxxx Transferee will have the
following registration rights in the event of a public offering:
If a registration pursuant to Section 5.1 of the Amended and Restated
Securityholders Agreement involves an Underwritten Public Offering (as
defined in the Amended and Restated Securityholders Agreement) and the
managing underwriter advises the Company that, in its view, the number of
shares of Common Stock which the Company and any holder of Registrable
Stock (as defined in the Amended and Restated Securityholders Agreement)
intend to include in such registration exceeds the largest number of
securities which can be sold without having an adverse effect on such
offering, including the price at which such securities can be sold (the
"Maximum Offering Size"), the Issuer will include in such registration, in
the following priority, up to the Maximum Offering Size:
(i) first, so much of the Common Stock proposed to be sold by the
Company as would not cause the offering to exceed the Maximum
Offering Size;
(ii) second, all Registrable Stock requested to be included in such
registration by any holder thereof pursuant to Section 5.1 of the
Amended and Restated Securityholders Agreement (allocated if
necessary for the offering not to exceed the Maximum Offering
Size, pro rata among such holders on the basis of the relative
number of shares of Registrable Stock so requested to be included
in such registration).
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9. Condition of Effectiveness of this Amendment.
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This Amendment will become effective concurrent with the closing of the
Merger. This Amendment shall terminate and have no further force and effect if
the Merger is not consummated on or before November 30, 1997.
10. Effect of this Amendment on the Remaining terms of the Stockholders'
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Agreement.
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Except as set forth herein, the Stockholders' Agreement remains unmodified
and in full force and effect.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the day and year first above written.
ENTERPRISE PARTNERS III, L.P.
By: Enterprise Management Partners III, L.P.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Its: General Partner
ENTERPRISE PARTNERS III ASSOCIATES, L.P.
By: Enterprise Management Partners III, L.P.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Its: General Partner
ENTERPRISE PARTNERS IV, L.P.
By: Enterprise Management Partners IV, L.P.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Its: General Partner
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ENTERPRISE PARTNERS IV ASSOCIATES, L.P.
By: Enterprise Management Partners IV, L.P.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Its: General Partner
ENTERPRISE MANAGEMENT PARTNERS CORPORATION
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Its: President
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DOSKOCILS:
/s/ XXXXXXXX X. XXXXXXXX, XX.
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Xxxxxxxx X. Xxxxxxxx, Xx.
/s/ XXXX XXXXXXX XXXXXXXX
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Xxxx Xxxxxxx Xxxxxxxx
XXXXXXXX MANUFACTURING COMPANY, INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: President and
Chief Executive Officer
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WESTAR CAPITAL, L.P.
By: Westar Capital Associates, a limited
partnership
Its General Partner
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
Title: General Partner
WESTAR CAPITAL II, LLC
By: Westar Capital Associates II, LLC
Its: Member
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
Its: Member
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