FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT
Reference is made to Stockholders' Agreement dated as of November 26, 1997
by and among Xxxxxx Products Corp., a Massachusetts corporation (the "Company"),
those persons listed as Berkshire Stockholders on the signature pages thereof
(collectively the "Berkshire Stockholders"), those persons listed as the
Management Stockholders on the signature pages thereof (the "Management
Stockholders"), Asco Investments, Ltd., a Bahamas corporation ("Asco") and those
"Other Stockholders" who acquired shares of capital stock of the Company as
described in Section 3.12 thereof (the "Stockholders' Agreement"). All defined
terms used herein and not otherwise defined have the meanings set forth in the
Stockholders' Agreement.
WHEREAS, the Company is this date issuing an additional 9,922,243 shares
of Common Stock to certain of the existing Stockholders, certain of their
affiliates, and certain members of management of the Company, pursuant to a
certain Stock Purchase Agreement dated as of the date hereof (each purchaser or
entity purchasing shares thereunder being hereinafter referred to as a "Stock
Purchaser");
WHEREAS, each Stock Purchaser desires to enter into and to become a party
to the Stockholders' Agreement for the purpose of regulating certain aspects of
the Stock Purchasers' relationships with regard to the Company, and certain
restrictions on the Common Stock owned by the Stock Purchasers and other
Stockholders of the Company; and
WHEREAS, the existing parties to the Stockholders' Agreement
desire to amend the Agreement for such purposes;
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth herein, and for one dollar and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
1. Each of the Stock Purchasers who is not already a party to the
Stockholders' Agreement hereby joins in and becomes a party to the
Stockholders' Agreement, as amended hereby, (i) as a Berkshire
Stockholder, if such Stock Purchaser is already a Berkshire
Stockholder, or is either Berkshire Fund IV Investment Corp. or is
Berkshire Fund V Investment Corp., or any permitted transferee thereof;
(ii) as a Management Stockholder, if such Stock Purchaser is already a
Management Stockholder; or (iii) in the case of any other Stock
Purchaser, as identified on the signature page hereto;
2. Hereafter, all references in the Stockholders' Agreement, as amended,
to "Stockholders" shall mean and refer to the original Stockholders who
were the parties thereto, any Other Stockholders who acquire shares of
capital stock of
the Company, as described in Section 3.12 thereof, and any of the Stock
Purchasers who are not already parties thereto;
3. Section 2.5(a) and (b) of the Stockholders Agreement are hereby deleted
in their entirety and replaced by the following new sections:
2.5 Corporate Governance.
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(a) At each annual meeting of the Stockholders and at each special
meeting of the Stockholders called for the purpose of electing
directors of the Company, and at any time at which stockholders of the
Company shall have the right to, or shall, vote for directors of the
Company, then, and in each event, the Stockholders hereby agree to
attend each meeting in person or by proxy and hereby agree to vote
stock of the Company and shares of the Company now owned or hereafter
acquired by him, her or it (whether at a meeting or by written consent
in lieu thereof) (i) so that the Company's Board of Directors shall be
designated as set forth herein, (ii) to fix the number of members of
the Board at any number up to nine (9) and (iii) to elect and
thereafter to continue in office as a Director of the Company the
following (i) two Directors shall be persons nominated by the Berkshire
Stockholders (currently Xxxxxxx X. Xxxxx and Xxxxx Xxxxxx)
(collectively the "Berkshire Representatives"); (ii) up to five (5)
Directors shall be persons nominated by the Management Shareholders
(and currently include Jordan X. Xxxx, Xxxxxxx Xxxxxxxxxx and Xxxxxxx
X. Xxxxx) (collectively, the "Management Representatives") and (iii) up
to two (2) Directors shall be persons who are not employees or officers
of the Company, one of whom shall be nominated by the Berkshire
Stockholders (subject to the reasonable approval of the Management
Stockholders) and one of whom shall be nominated by the Management
Stockholders (subject to the reasonable approval of the Berkshire
Stockholders) (collectively the "Outside Representatives"). A vacancy
in either of the directorships to be occupied by a Berkshire
Representative shall be filled only by vote or written consent of a
majority in interest of the Berkshire Stockholders; a vacancy in any of
the directorships to be held by the Management Representative shall be
filled only by vote or written consent of Management Stockholders
holding at least eighty percent (80%) in interest of the Shares held by
all Management Stockholders; and a vacancy in the directorships to be
held by the Outside Representatives shall be filled only be vote or
written consent of the Stockholders who nominated such Outside
Representative (subject to the approval as set forth in clause (iii)
above).
(b) Board Expansion. So long as either (i) the Berkshire
Stockholders shall own at least forty percent (40%) of the Shares
(including vested Time Options and earned Performance Options) or (ii)
the Berkshire Stockholders
collectively own more Shares (including vested Time Options and vested
and earned Performance Options) than the Management Stockholders or any
other single stockholder, the Berkshire Stockholder may at any time
require, by written notice to the other Stockholders (the "Increase
Notice"), that the number of directors constituting the Board of
Directors be increased by four (4). The Berkshire Stockholders shall
have the right to designate such additional directors. If the Increase
Notice is given by the Berkshire Stockholders, the nomination of the
Outside Representatives as set forth in Section 2.5(a)(iii) above shall
no longer require the approval of the other stockholders. Each
Stockholder agrees that such Stockholder and its Permitted Transferees
shall take all action as may be necessary or appropriate, including
without limitation, the voting of all Shares owned by them, to so
increase the number of directors constituting the Board of Directors
and to elect the directors so designated by the Berkshire Stockholders.
4. This Agreement shall constitute for all purposes an amendment to the
Stockholders' Agreement, and, except as amended hereby, the
Stockholders' Agreement is ratified and confirmed in all respects. All
shares of Common Stock issued to each of the Stock Purchasers shall be
subject to the restrictions on transfer, rights of purchase and other
provisions set forth in the Stockholders' Agreement, and shall be
legended in the manner set forth in Section 3.10 thereof.
5. This Agreement shall become effective at such time as it is executed by
each of the Stock Purchasers, and a majority in interest of each of the
Berkshire Stockholders and Management Stockholders who were parties to
the Stockholders' Agreement prior to the issuance of shares of Common
Stock to the Stock Purchasers this date.
6. This Agreement may be executed in any number of counterparts, each of
which will be deemed an original, but all of which together shall
constitute one and the same instrument, and all signatures need not
appear in any one counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the 5 day of February, 1999.
XXXXXX PRODUCTS CORP.
By: /s/ Xxx X. Xxxxxxxxxxx
_________________________
Name: Xxx X. Xxxxxxxxxxx
Title: Senior Vice President-Finance
XXXXXX PRODUCTS CORP.
FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT
COUNTERPART SIGNATURE PAGE
BERKSHIRE STOCKHOLDERS:
BERKSHIRE FUND IV, LIMITED
PARTNERSHIP
By: Fourth Berkshire Associates, LLC,
its general partner
By: /s/ Xxxxxxx X. Xxxxx
____________________________
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
BERKSHIRE INVESTORS LLC
By: /s/ Xxxxxxx X. Xxxxx
____________________________
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
New Berkshire Stockholders:
BERKSHIRE FUND IV INVESTMENT CORP.
By: /s/ Xxxxxxx X. Xxxxx
____________________________
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
Address: c/o Berkshire Partners
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
BERKSHIRE FUND V INVESTMENT
CORP.
By: /s/ Xxxxxxx X. Xxxxx
____________________________
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
Address: c/o Berkshire Partners
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
XXXXXX PRODUCTS CORP.
FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT
COUNTERPART SIGNATURE PAGE
BERKSHIRE STOCKHOLDERS:
FSC CORP.
By: /s/ Xxxx Xxxxxxx Xxxxxx
____________________________
Name: Xxxx Xxxxxxx Xxxxxx
Title:
XXXXXX PRODUCTS CORP.
FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT
COUNTERPART SIGNATURE PAGE
BERKSHIRE STOCKHOLDERS:
SUNAPEE SECURITIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
____________________________
Name: Xxxx X. Xxxxxxxxx
Title: Treasurer
SQUAM LAKE INVESTORS, II, L.P.
By: /s/ Xxxx X. Xxxxxxxxx
____________________________
Name: Xxxx X. Xxxxxxxxx
Title: Treasurer
SQUAM LAKE INVESTORS, III, L.P.
By: /s/ Xxxx X. Xxxxxxxxx
____________________________
Name: Xxxx X. Xxxxxxxxx
Title: Treasurer
XXXXXX PRODUCTS CORP.
FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT
COUNTERPART SIGNATURE PAGE
BERKSHIRE STOCKHOLDERS:
PANGAEA GROUP, INC.
By: /s/ Xxxxxx Xxxxxxxx
____________________________
Name: Xxxxxx Xxxxxxxx
Title:
XXXXXX PRODUCTS CORP.
FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT
COUNTERPART SIGNATURE PAGE
ASCO:
ASCO INVESTMENT LTD.
By: /s/ Xxxx Xxxxxxx
____________________________
Name: Xxxx Xxxxxxx
Title:
XXXXXX PRODUCTS CORP.
FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT
COUNTERPART SIGNATURE PAGE
MANAGEMENT STOCKHOLDERS:
/s/ Jordan X. Xxxx
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Jordan X. Xxxx
/s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
/s/ Xxx Xxxx Fai (Xxxxx Xxx)
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Xxx Xxxx Fai (Xxxxx Xxx)
XXXXXX PRODUCTS CORP.
FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT
COUNTERPART SIGNATURE PAGE
NEW MANAGEMENT STOCKHOLDER
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Address: The Rival Company
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000 Xxxx 000xx Xxxxxxx
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Xxxxxx Xxxx, Xxxxxxxx 00000
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