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Exhibit 10.23
AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AMENDMENT NO. 1, dated as of March 28, 1997 TO THE
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Amendment"), dated as of
March 5, 1997, by and among the VOTING TRUST (the "Voting Trust") created under
the Second Amended WABCO Voting Trust/Disposition Agreement, dated as of
December 13, 1995 (the "Voting Trust Agreement"), VESTAR EQUITY PARTNERS, L.P.,
a Delaware limited partnership ("Vestar"), HARVARD PRIVATE CAPITAL HOLDINGS,
INC., a Massachusetts corporation ("Harvard"), AMERICAN INDUSTRIAL PARTNERS
CAPITAL FUND II, L.P., a Delaware limited partnership ("AIP"), and WESTINGHOUSE
AIR BRAKE COMPANY, a Delaware corporation ("WABCO").
W I T N E S S E T H T H A T:
WHEREAS, the parties hereto have previously entered into that
certain Amended and Restated Stockholders Agreement (the "Stockholders
Agreement"), dated as of March 5, 1997; and
WHEREAS, the parties hereto executed the Stockholders
Agreement based upon the understanding that Xxxxxx X. Xxxxxxxx ("Xx. Xxxxxxxx")
would execute a joinder to such Stockholders Agreement; and
WHEREAS, it is now the understanding of the parties hereto
that Xx. Xxxxxxxx will not be asked to execute such a joinder; and
WHEREAS, the parties hereto wish to amend the Stockholders
Agreement to delete references to Xx. Xxxxxxxx from such Stockholders Agreement.
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants hereinafter set forth and intending to be legally bound hereby,
agree as follows:
Section 1. AMENDMENTS.
Section 4.1.1(f) of the Stockholders Agreement is hereby
amended in its entirety to read as follows:
Any person designated by Vestar, Harvard, Xx. Xxxxxxxx or, in
the case of Xx. Xxxxxxxxx, the Chairman of the Board, as
provided for herein shall be nominated by the Nominating
Committee to be elected to the Board at the stockholders'
meeting, or by the Directors already elected to the Board, as
the case may be, voting in conformity with such nomination. In
furtherance thereof, each of the Voting Trust, Vestar,
Harvard, Vestar Capital, AIP, Xx. Xxxxxxxx, Xx. Xxxxxxxxx,
Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxxx agrees to vote all of the
shares of Common Stock and any other voting securities of
WABCO from time to time held by it or him in favor of, and
each of the Voting Trust, Harvard, Vestar Capital, AIP, Xx.
Xxxxxxxx, Xx. Xxxxxxxxx, Xx. Xxxxxx and Xx. Xxxxxxx agrees to
cause any shares of Common Stock or other WABCO voting
securities as to which it or he from time to time has the
right to direct the vote to be voted in favor of, and to take
any other appropriate steps to cause, the election to the
Board of individuals
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designated by Vestar, Harvard and/or Xx. Xxxxxxxx and, in the
case of Xx. Xxxxxxxxx, the Chairman of the Board, and
nominated by the Nominating Committee in accordance with this
Section 4.1.1; provided, that Xx. Xxxxxxxx shall not be deemed
to control any shares of Common Stock held by the ESOP for
purposes of this Section 4.1
Section 5.2.4 of the Stockholders Agreement is hereby amended
in its entirety to read as follows:
Notwithstanding any provision herein to the contrary,
Trustholders (other than Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx
and Xxxx X. Xxxxxxx, who shall be subject to Section 5.2.5
below) shall, to the extent permitted by the Voting Trust
Agreement, be permitted to transfer Voting Trust Shares,
withdraw Voting Trust Shares from the Voting Trust, and/or
sell or otherwise dispose of Shares at any time. Upon
expiration of the Voting Trust, Voting Trust Shares may be
distributed in accordance with the terms thereof and such
Voting Trust Shares will no longer be subject to Section 5.1.
Section 5.2.5(a) of the Stockholders Agreement is hereby
amended in its entirety to read as follows:
Except as permitted by Section 5.2.5(b), 5.2.5(c) and
5.2.5(d), until Xxxxx 00, 0000, xxxx of Messrs. Kassling,
Fernandez, Xxxxxx and Xxxxxxx (collectively, the "Management
Group") shall sell, transfer, assign, mortgage, change,
hypothecate, give away or otherwise dispose of (collectively
"transfer") any shares of Common Stock beneficially owned by
him or any of his interest in the Voting Trust (treating any
Common Stock held by the Voting Trust for the account of any
member of the Management Group as Common Stock owned by such
member); provided, however, that members of the Management
Group also shall be permitted to transfer at any time shares
of Common Stock in the circumstances described in clauses (i),
(ii) and (iii) of the first sentence of Section 5.2.1 hereof.
Section 5.2.5(g) of the Stockholders Agreement is hereby
amended in its entirety to read as follows:
Shares of Common Stock beneficially owned by the Management
Group are as follows:
Xxxxxxx X. Xxxxxxxx 1,548,336 shares
Xxxxxx X. Xxxxxxxxx 643,444 shares
Xxxxxx X. Xxxxxx 437,300 shares
Xxxx X. Xxxxxxx 251,000 shares
It is agreed that the foregoing shares include all shares of
Common Stock controlled by the Management Group and their
respective spouses and minor children and that all of the
foregoing shares shall be subject to this Agreement.
Section 2. MISCELLANEOUS. Except as expressly set forth
herein, the terms and provisions of the Stockholders Agreement are and shall
remain in full force and effect.
Section 3. GOVERNING LAW. This Amendment shall be governed by
and construed in accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the Parties hereto, by their officers
thereunto duly authorized, have executed and delivered this Amendment as of the
day and year first above written.
VESTAR EQUITY PARTNERS, L.P.
By: VESTAR ASSOCIATES, L.P., its General
Partner
By: VESTAR ASSOCIATES CORPORATION,
its General Partner
/s/ XXXXX X. XXXXXX
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By: Xxxxx X. Xxxxxx
Title: Managing Director
HARVARD PRIVATE CAPITAL HOLDINGS, INC.
By: /s/ XXXX X. XXXXX
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Its: Authorized Signatory
By: /s/ XXXXXXX X. XXXXXXXX
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Its: Authorized Signatory
VOTING TRUST
By: /s/ XXXXXX X. XXXXXX
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Its: Trustee
WESTINGHOUSE AIR BRAKE COMPANY
By: /s/ XXXXXX X. XXXXXX
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Its: Vice President And Secretary
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AMERICAN INDUSTRIAL PARTNERS
CAPITAL FUND II, L.P.
By: American Industrial Partners II, L.P.,
its General Partner
By: American Industrial Partners
Corporation, its General Partner
/s/ XXXXXXXX X. XXXXXX
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By: Xxxxxxxx X. Xxxxxx
Title: Chairman
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