EXHIBIT 4.16
FIRST AMENDMENT TO
STOCKHOLDERS AGREEMENT
AMENDMENT, dated May 2, 2000 (this "Amendment Agreement"), among
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Outboard Marine Corporation, a Delaware corporation (the "Company"), Quantum
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Industrial Partners LDC, a Cayman Islands limited duration company ("QIP"),
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Greenlake Holdings II LLC, a Delaware limited liability company ("Greenlake II")
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and Greenlake Holdings III LLC, a Delaware limited liability company ("Greenlake
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III"), to that certain STOCKHOLDERS AGREEMENT, dated January 28, 2000 (the
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"Existing Agreement"), among the Company, QIP, and Greenlake II. Unless
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otherwise set forth in this Amendment Agreement, capitalized terms have the
respective meanings assigned to them in the Existing Agreement.
WHEREAS, the Company, QIP and Greenlake II entered into the Existing
Agreement in connection with their acquisition on January 28, 2000 of an
aggregate of 650,000 shares of the Company's Series A Convertible Preferred
Stock, par value $.01 per share (the "Series A Preferred Stock"), and warrants
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(the "Existing Warrants") to purchase an aggregate of 5,750,000 shares of the
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Company's Common Stock in order to restrict the transfer of such securities and
to provide for, among other things, first offer, tag-along and preemptive rights
and certain other rights under certain conditions; and
WHEREAS, the Company proposes to issue and sell to QIP and Greenlake
III or their affiliates $15,000,000 aggregate principal amount of the Company's
Subordinated Notes due June 1, 2000 (the "Subordinated Notes"), and warrants
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(the "New Warrants") to purchase an aggregate of 330,000 shares of the Company's
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Common Stock pursuant to the terms of a Subordinated Note and Warrant Purchase
Agreement, dated the date hereof (the "Subordinated Notes Purchase Agreement"),
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among the Company, QIP and Greenlake III; and
WHEREAS, the Existing Agreement provides that the Existing Agreement
may amended by an amendment in writing signed by the Company and the
Stockholders holding 75% of the voting power of the Shares held by Stockholders;
and
WHEREAS, QIP and Greenlake II hold, in the aggregate, in excess of 75%
of the voting power of the Shares held by Stockholders; and
WHEREAS, the parties wish to amend the Existing Agreement in order to
(i) exempt the transactions contemplated by the Subordinated Notes Purchase
Agreement from the preemptive rights provisions of the Existing Agreement, (ii)
restrict the transfer of the securities to be issued pursuant to the
Subordinated Notes Purchase Agreement, and (iii) to add Greenlake III as a
Stockholder hereunder;
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NOW, THEREFORE, the Company, QIP, Greenlake II and Greenlake III
hereby agree to amend the Existing Agreement as follows:
1. Amendments to Section 1 of the Existing Agreement (Definitions).
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(a) Section 1 of the Existing Agreement is hereby amended to add
the following additional definitions:
"Amendment Agreement" means the Amendment Agreement, dated
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May 2, 2000, among the Company, QIP, Greenlake II and Greenlake III
amending that certain Stockholders Agreement, dated January 28, 2000, among
the Company, QIP, and Greenlake II.
"Existing Agreement" is defined in the preamble to the
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Amendment Agreement.
"Existing Warrants" is defined in the first recital of the
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Amendment Agreement.
"Greenlake II" is defined in the preamble to the Amendment
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Agreement.
"Greenlake III" is defined in the preamble to the Amendment
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Agreement.
"New Warrants" is defined in the second recital of the
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Amendment Agreement.
"Series A Preferred Stock" is defined in the first recital
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of the Amendment Agreement.
"Series B Preferred Stock" means the shares of the Company's
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Series B Convertible Preferred Stock issuable upon conversion of the
Subordinated Notes.
"Subordinated Notes" is defined in the second recital of the
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Amendment Agreement.
"Subordinated Notes Purchase Agreement" is defined in the
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second recital of the Amendment Agreement.
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(b) Section 1 of the Existing Agreement is hereby further
amended by substituting the following definitions for the definition of such
terms contained in the Existing Agreement:
"Preferred Stock" means the shares of the Company's Series A
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Preferred Stock and Series B Preferred Stock.
"Stockholders" means (a) QIP, Greenlake II and Greenlake III
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and any transferee thereof who has agreed to be bound by the terms and
conditions of this Agreement in accordance with Section 2.4 and (b) any
Person who has agreed to be bound by the terms and conditions of this
Agreement in accordance with Section 5.2(a), and the term "Stockholder"
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shall mean any such Person.
"Warrants" means the Existing Warrants and the New Warrants.
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2. Amendment of Section 4 of the Existing Agreement (Future Issuance
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of Shares; Preemptive Rights). Section 4 of the Existing Agreement is hereby
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amended by adding an new Subsection 4.5 providing as follows:
4.5 Exempt Transactions. Anything in Sections 4.1 through
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4.4 to the contrary notwithstanding, the Company may consummate the
transactions contemplated by the Subordinated Notes Purchase Agreement,
including the issuance of the Subordinated Notes and the New Warrants,
without complying with the provisions of said Sections 4.1 through 4.4, and
the holders of the securities issued pursuant to the Subordinated Notes
Purchase Agreement, as well as any securities into which such securities
may be converted or for which such securities may be exercised, shall enjoy
all rights of ownership thereof notwithstanding the fact that the Company
has not complied with the provisions of Section 4.1 through 4.4 hereof in
connection with the initial issuance thereof.
3. Amendment to Section 5.1 of the Existing Agreement (After-
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Acquired Securities). Section 5.1 of the Existing Agreement is hereby amended
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and restated in its entirety to read as follows:
5.1 After-Acquired Securities. All of the provisions of
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this Agreement shall apply to all of the Shares and Common Stock
Equivalents issued pursuant to the Stock Purchase Agreement and to the
Subordinated Notes Purchase Agreement (including, without limitation,
shares of Series B Preferred Stock issued upon conversion of the
Subordinated Notes).
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4. Amendment to Section 6.4 of the Existing Agreement (Board
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Representation). Section 6.4 of the Existing Agreement is hereby amended and
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restated in its entirety to read as follows:
6.4 Board Representation. For so long as QIP, Greenlake II
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and Greenlake III, or Affiliates thereof, collectively own at least 50% of
the outstanding shares of Preferred Stock, the Company's Board of Directors
shall be expanded to add one additional director (the "Additional
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Director") who shall be selected by the holders of a majority of the
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outstanding shares of Preferred Stock. The Company will use its best
efforts to cause the Additional Director to be nominated and to solicit
proxies for his or her election.
5. Representations and Agreements of Greenlake III. Greenlake III
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does hereby acknowledge and agree that (i) it has been given a copy of the
Existing Agreement and this Amendment Agreement, afforded ample opportunity to
read and to have counsel review it, and is thoroughly familiar with its terms,
(ii) any Shares (including any Common Stock Equivalents) which it may now or
hereafter acquire are and shall be subject to the terms and conditions set forth
in the Existing Agreement, as amended by this Amendment Agreement (the
"Agreement"), and (iii) it agrees fully to be bound by the terms of the
Agreement as a Stockholder, as such term is defined in the Agreement.
6. Miscellaneous.
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6.1 Headings. The headings in this Amendment Agreement are for
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convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
6.2 GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL BE GOVERNED
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AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
6.3 Continuation of Existing Agreement. Any reference in the
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Existing Agreement to "this Agreement" of "hereof" or using words of similar
meaning, shall be deemed to refer to the Existing Agreement as amended by this
Amendment Agreement. Except as specifically amended hereby, the Existing
Agreement shall continue in full force and effect in accordance with its terms.
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this Amendment Agreement on the date first written above.
OUTBOARD MARINE CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Interim CFO and Vice President and
Treasurer
QUANTUM INDUSTRIAL PARTNERS LDC
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Attorney-In-Fact
GREENLAKE HOLDINGS II LLC
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
GREENLAKE HOLDINGS III LLC
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
