FIRST AMENDMENT TO SHAREHOLDER AGREEMENT
This First Amendment to Shareholder Agreement (this "Amendment"), dated as
of June 13, 1997, is entered into by and among PRECISE HOLDING CORPORATION, a
Delaware corporation (the "Company"), and SUNDERLAND INDUSTRIAL HOLDINGS
CORPORATION, a Delaware corporation ("Sunderland"), XXXXXXXX HOLDINGS LTD.
CORPORATION, a Texas corporation ("Xxxxxxxx"), DELAWARE STATE EMPLOYEES'
RETIREMENT FUND, a Delaware corporation ("Delaware"), in its capacity as a
shareholder, DECLARATION OF TRUST FOR DEFINED BENEFIT PLANS OF ZENECA HOLDINGS
INC., a Delaware corporation ("Zeneca"), in its capacity as a shareholder, and
DECLARATION OF TRUST FOR DEFINED BENEFIT PLANS OF ICI AMERICAN HOLDINGS INC., a
Delaware corporation ("ICI"), in its capacity as a shareholder (individually and
collectively, the "Shareholder"), and RICE PARTNERS II, L.P., a Delaware limited
partnership ("Rice"), XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY, a
Massachusetts mutual life insurance company ("Xxxx Xxxxxxx"), DELAWARE, in its
capacity as a warrantholder, ZENECA, in its capacity as a warrantholder, and
ICI, in its capacity as a warrantholder (individually and collectively, the
"Purchaser") (Delaware, Zeneca and ICI are collectively referred to herein as
"Pecks").
RECITALS
A. The Company, the Shareholder and the Purchaser have entered into that
certain Shareholder Agreement dated as of March 29, 1996 (the "Shareholder
Agreement").
B. The Company owns beneficially and of record all of the issued and
outstanding common stock of Precise Technology, Inc., a Delaware corporation
("Precise").
C. Precise desires to issue up to $75,000,000 of 11 1/8% Senior
Subordinated Notes due 2007 on the terms described in that certain Offering
Memorandum dated June 10, 1997 furnished by the Company to Xxxx, Xxxx Xxxxxxx
and Pecks (the "Public Notes").
D. The Company, the Shareholder and the Purchaser desire to amend the
Shareholder Agreement to allow and provide for the issuance of the Public Notes
and to allow and provide for certain other matters, all as hereinafter set
forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. DEFINITIONS. All capitalized terms used but not otherwise defined in this
Amendment shall have the meanings ascribed to them in the Shareholder Agreement.
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2. AMENDMENTS. The Shareholder Agreement is hereby amended as follows:
2.1 Amendment to Article I; Addition of Certain Definitions. Article I of
the Shareholder Agreement is hereby amended by adding thereto in alphabetical
order the following definitions:
"Indenture. The Indenture, to be dated as of June 13, 1997, between
Precise and Marine Midland Bank, as trustee, as in effect on June 13,
1997."
"Public Notes. The 11 1/8% Senior Subordinated Notes due 2007 issued
by Precise pursuant to the terms of the Indenture."
"Senior Loan Agreement. The Credit Agreement, dated as of June 13,
1997, by and among the Company, Precise, certain Subsidiaries of Precise,
Fleet National Bank, as Agent, Issuing Bank and as a lender, and each of
the other financial institutions a party thereto, as the same may be
modified, amended, waived, supplemented or otherwise changed from time to
time, and all documents and instruments delivered pursuant thereto in
connection with the loans and advances made thereunder."
2.2 Amendment to Article I; Deletion of Certain Definitions. Article I of
the Shareholder Agreement is hereby amended by deleting therefrom the definition
for "Senior Subordination Agreement".
2.3 Amendment to Article I; Amendment of Certain Definitions. Article I of
the Shareholder Agreement is hereby amended by deleting therefrom the
definitions for "Senior Lender" and "Senior Loan Documents" and substituting the
following in lieu thereof:
"Senior Lender. Fleet National Bank, a national banking association,
and any other financial institution a party to the Senior Loan Agreement,
and their respective successors and assigns."
"Senior Loan Documents. The Senior Loan Agreement and the agreements,
documents and instruments executed in connection therewith or contemplated
thereby, and all amendments, modifications, waivers, renewals, extensions,
substitutions, increases or replacements thereof."
2.4 Amendment to Section 4.04. Section 4.04 of the Shareholder Agreement is
hereby deleted in its entirety and the following substituted in lieu thereof:
"4.04. Certain Remedies. In the event that (i) the Company defaults in
its obligation to purchase all or any portion of the Put Shares in cash
upon exercise of the Put Option, (ii) any Holder exercises the Put Option
at a time when the Put Price is not permitted to be paid in cash to such
Holder pursuant to applicable law, (iii) any Holder exercises the Put
Option at a time when the Senior Loan Documents or the Indenture prohibit
Precise from paying a dividend to the Company in order to fund the payment
of
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the Put Price in cash, and the Company fails to obtain a waiver of such
default from the Senior Lender (with respect to the occurrence of a default
under the Senior Loan Documents) or the holders of the Public Notes (with
respect to the occurrence of a default under the Indenture), as the case
may be, or (iv) any Holder exercises the Put Option at a time when payment
of all or any portion of the Put Price in cash would, after giving effect
to such payment, result in Precise's available cash plus availability under
the Senior Loan Documents being less than $5,000,000 in the aggregate,
then, in any such event, the Company will (a) pay such portion of the Put
Price in cash as is not prohibited by clauses (i), (ii), (iii) or (iv)
above, (b) upon the request of any Holder and to the extent any portion of
the Put Price is not paid in cash under this Section 4.04, execute and
deliver to such Holder a promissory note (a "Put Note") in form and
substance satisfactory to such Holder evidencing such remaining Put Price,
and (c) not declare or make any dividends or distributions of its cash or
redeem, retire, purchase, or otherwise acquire, directly or indirectly, any
of its Capital Stock or capital stock or securities of any Affiliate of the
Company, or any securities convertible or exchangeable into Capital Stock
or capital stock or securities of any Affiliate of the Company until the
Put Price has been paid in full in cash. Any Put Note issued pursuant to
the terms and conditions of this Section 4.04 will (a) be substantially in
the form of Exhibit A attached hereto, (b) mature on April 1, 2006 (unless
sooner accelerated pursuant to the terms of the Put Note) and (c) bear
interest at the following rates per annum: (i) 14% per annum for the twelve
month period immediately following the date of issuance of such promissory
note, (ii) 16% per annum for the next succeeding twelve month period and
(iii) 18% per annum thereafter. In addition to the right to request the
issuance of a Put Note, any Holder may, upon the failure of the Company to
pay any portion of the Put Price not prohibited by clauses (ii), (iii) or
(iv) above, exercise all rights or remedies available to such Holder
(whether at law or in equity) against the Company, and, in addition
thereto, such Holder shall be entitled to liquidated damages in the amount
specified in Section 11.02 of this Agreement."
2.5. Amendment to Section 11.06. Section 11.06 of the Shareholder Agreement
is hereby amended by deleting therefrom the notice addresses for the Company and
the Shareholder and substituting the following in lieu thereof:
"If to the Company, at: Precise Holding Corporation
c/o Mentmore Holdings Corporation
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx
FAX: (000)000-0000
with courtesy copies to: Xxxxxxx X. Xxxxxxxx
c/o Mentmore Holdings Corporation
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
FAX: (000)000-0000
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Xxxxxx, XxXxxx & Xxxxxxxxxxx
200 Public Square, 00xx Xxxxx
XX Xxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxxxx
FAX: (000)000-0000
If to the Shareholder, at:
Sunderland Industrial Holdings Corporation
Xxxxxxxx Holdings Ltd. Corporation
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000)000-0000
Delaware State Employees' Retirement Fund
Declaration of Trust for Defined Benefit Plans
of Zeneca Holdings Inc.
Declaration of Trust for Defined Benefit Plans
of ICI American Holdings Inc.
c/o Pecks Management Partners Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx
Fax: (000)000-0000
with courtesy copies to:
Xxxxxxx X. Xxxxxxxx
c/o Mentmore Holdings Corporation
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000)000-0000
Xxxxxx, XxXxxx & Xxxxxxxxxxx
200 Public Square, 00xx Xxxxx
XX Xxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxxxx
Fax: (000)000-0000
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Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Xx.
Fax: (000)000-0000"
3. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment is subject
to the satisfaction of the following conditions precedent, unless specifically
waived in writing by the Purchaser:
3.1 Each Purchaser shall have received on its behalf:
(a) this Amendment, duly executed by the Company; and
(b) such additional documents, instruments and information as such
Purchaser or its legal counsel may request.
3.2 No default or event of default shall have occurred and be continuing
under either the Warrant Agreement or the Shareholder Agreement, unless such
default or event of default has been specifically waived in writing by
Purchaser.
3.3 All corporate proceedings taken in connection with the transactions
contemplated by this Amendment and all documents, instruments and other legal
matters incident thereto shall be satisfactory to each Purchaser and their
respective legal counsel.
3.4 The Public Notes shall have been issued on the terms described in the
Offering Memorandum dated June 10, 1997 furnished by the Company to Purchaser.
3.5 The Senior Subordinated Notes (as defined in the Note Agreement),
together with all accrued interest and any applicable Prepayment Fee (as defined
in the Note Agreement), shall have been paid in full utilizing a portion of the
proceeds of the Public Notes.
3.6 The Pecks Preferred Stock, together with all accrued and unpaid
dividends thereon, shall have been redeemed and/or paid utilizing a portion of
the proceeds of the Public Notes.
4. RATIFICATIONS, REPRESENTATIONS AND WARRANTIES.
4.1. The terms and provisions set forth in this Amendment shall modify and
supersede all inconsistent terms and provisions set forth in the Shareholder
Agreement (including, without limitation, all representations, warranties and
covenants contained therein) and all other agreements, instruments and documents
related thereto, and, except as expressly modified and superseded by this
Amendment, the terms and provisions of the Shareholder Agreement and all other
agreements, instruments and documents related thereto are ratified and confirmed
and shall
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continue in full force and effect. The Company and Purchaser agree that the
Shareholder Agreement and all other agreements, instruments and documents
related thereto, in each case as amended hereby, shall continue to be legal,
valid, binding and enforceable in accordance with their respective terms.
4.2. The Company hereby represents and warrants to Purchaser that (a) the
execution, delivery and performance of this Amendment and any and all other
agreements executed and/or delivered in connection herewith have been authorized
by all requisite corporate action on the part of the Company and will not
violate the Certificate of Incorporation or Bylaws of the Company; (b) the
Company is in material compliance with all covenants and agreements contained in
the Shareholder Agreement, as amended hereby, and all other agreements,
instruments and documents related thereto; and (c) the Company has not amended
its Certificate of Incorporation or its Bylaws since March 29, 1996, except for
such amendments, if any, as have been delivered to Purchaser on the date hereof.
5. MISCELLANEOUS.
5.1. Reference to Shareholder Agreement. Each of the Shareholder Agreement
and all other agreements, certificates and documents related thereto, and any
and all other agreements, documents or instruments now or hereafter executed and
delivered pursuant to the terms hereof or pursuant to the terms of the
Shareholder Agreement, as amended hereby, are hereby amended so that any
reference in the Shareholder Agreement and such agreements, instruments and
documents related thereto to the Shareholder Agreement shall mean a reference to
the Shareholder Agreement as amended hereby.
5.2. Headings. The headings of the sections and subsections of this
Amendment are inserted for convenience only and do not constitute a part of this
Amendment.
5.3. Counterparts. This Amendment may be executed in any number of
counterparts, which shall collectively constitute one agreement.
5.4. Law Governing. THIS AMENDMENT HAS BEEN EXECUTED, DELIVERED, AND
ACCEPTED BY THE PARTIES IN NEW YORK, NEW YORK, WILL BE DEEMED TO HAVE BEEN MADE
IN THE STATE OF NEW YORK, AND WILL BE INTERPRETED AND THE RIGHTS OF THE PARTIES
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES APPLICABLE THERETO
AND THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AN AGREEMENT
EXECUTED, DELIVERED AND PERFORMED THEREIN WITHOUT GIVING EFFECT TO THE
CHOICE-OF-LAW RULES THEREOF OR ANY OTHER PRINCIPLE THAT COULD REQUIRE THE
APPLICATION OF THE SUBSTANTIVE LAW OF ANY OTHER JURISDICTION.
5.5. Final Agreement. The Warrant Agreement and the Shareholder Agreement,
in each case as amended, constitute the entire agreement among the parties with
respect to the subject matter hereof and thereof and supersede all previous
written, and all previous or
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contemporaneous oral, negotiations, understandings, arrangements, and
agreements. The Shareholder Agreement, as amended hereby, may not be amended or
supplemented except by a writing signed by Company and each Holder.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered as of the date first above written.
COMPANY:
PRECISE HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, President
SHAREHOLDER:
SUNDERLAND INDUSTRIAL HOLDINGS
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, President
XXXXXXXX HOLDINGS LTD.
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name:
Title:
PURCHASER:
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx Xxxx
---------------------------------------
Xxxxxxx Xxxx, Senior Investment Officer
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RICE PARTNERS II, L.P.
By: Rice Capital Group IV, L.P.,
its general partner
By: RMC Fund Management, L.P.,
its general partner
By: Rice Mezzanine Corporation,
its general partner
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Xxxxx X. Xxxxxx
Managing Director
DELAWARE STATE EMPLOYEES'
RETIREMENT FUND, as a
Shareholder and as a Purchaser
By: Pecks Management Partners, Ltd.,
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
Managing Director
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DECLARATION OF TRUST FOR
DEFINED BENEFIT PLANS OF
ZENECA HOLDINGS INC., as a
Shareholder and as a Purchaser
By: Pecks Management Partners, Ltd.,
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
Managing Director
DECLARATION OF TRUST FOR
DEFINED BENEFIT PLANS OF
ICI AMERICAN HOLDINGS INC.,
as a Shareholder and as a Purchaser
By: Pecks Management Partners, Ltd.,
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
Managing Director
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