EXHIBIT 10.48
FIRST AMENDMENT
TO
RESTATED SHAREHOLDERS AGREEMENT
OF
ENDEAVOR TECHNOLOGIES, INC.
THIS FIRST AMENDMENT ("First Amendment"), dated as of the 15th day of
December, 1997, is made and entered into by and among Endeavor Technologies, a
Georgia corporation (the "Corporation"), Xxxxxxx X. Xxxxxx ("Xxxxxx"), Xxxxx X.
Xxxxxxxx ("Xxxxxxxx"), Xxxxxx X. Xxxxx, III ("Xxxxx"), Xxxxxx X. Xxxxx
("Xxxxx"), Premiere Technologies, Inc. ("Premiere"), and the parties named or to
be named on the signature pages hereto (collectively with Arnold, Rissanen,
Xxxxx and Xxxxx, the "Shareholders"), in respect of the RESTATED SHAREHOLDERS
AGREEMENT (the "Original Agreement," and, as amended by this First Amendment,
the "Agreement").
W I T N E S S E T H :
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WHEREAS, in connection with the issuance and sale by the Corporation
to Premiere of 1,100,000 shares of Series E Common Stock of the Corporation, it
has been agreed that Premiere is to be added as a Shareholder under the
Agreement;
WHEREAS, the Shareholders have agreed to certain changes in the
constitution of the Board of Directors, as set forth in this Amendment;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto, subject to the terms and conditions set forth
below, hereby agree as follows:
1. Premiere. Premiere is hereby added as a "Shareholder" for
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purposes of the Agreement. For purposes of Section 1.17 of the Agreement,
"Equity Securities" shall include, without limitation, the Series E Common Stock
of the Corporation. Exhibit A to the Agreement (as referred to in Article II of
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the Agreement) is hereby updated as provided in Exhibit A hereto. For purposes
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of Section 1.29 of the Agreement, "Participating Securities" shall include,
without limitation, the Series E Common Stock of the Corporation.
2. Board of Directors. Section 3.1 of the Agreement is hereby
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amended by replacing the phrase "seven Directors" with the phrase "at least
seven Directors" and by adding the following paragraph (e), to provide as
follows:
"(e) For so long as Premiere owns at least 3% of the
Corporation's Equity Securities on a Fully Diluted Basis, Premiere
shall be entitled to designate one Director."
References in Section 3.2 of the Agreement to "Arnold, Rissanen, Xxxxx and
Xxxxx," as the Shareholders individually entitled to
designate one or more Directors pursuant to Section 3.1 of the Agreement, shall
hereafter be to "Arnold, Rissanen, Xxxxx, Xxxxx and Premiere," as the context
requires.
3. Fundamental Corporate Transactions. Section 3.4 of the Agreement
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is hereby amended by changing the phrase "at least five Directors" with the
phrase "a majority of the Directors then in office, including at least five of
the Directors designated by Arnold, Rissanen, Xxxxx, Xxxxx and Premiere as
provided in Section 3.1 hereof." The following paragraph (i) is hereby added to
Section 3.4 of the Agreement:
(i) Action by the Board of Directors to set designations, voting
powers, preferences, relative rights, qualifications, limitations and
restrictions of or for any Special Stock which are or would be
materially more favorable to the holders thereof than any class or
series of Common Stock then already authorized, as determined by the
Board of Directors at the time.
4. Competition. Section 4.2 of the Agreement shall not apply to
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Premiere as a Shareholder.
5. Effectiveness. As provided in Section 7.16 of the Original
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Agreement, this Amendment shall be effective on the first date it has been
executed by Shareholders holding (i) a majority of the issued and outstanding
Series A Common Stock and (ii) a majority of issued and outstanding
Participating Securities, provided that the Series E Common Stock to be issued
and sold by the Corporation to Premiere shall not be considered Participating
Securities for such purpose.
6. Further Amendment. The Agreement may be amended or modified in
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such a manner as to adversely and disparately affect the rights of Premiere as a
Shareholders, relative to other Participating Shareholders, only if, in addition
to the requirements of Section 7.16 of the Original Agreement, Premiere consents
in writing to such amendment or modification.
7. Survival. Except as expressly provided otherwise in this
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Amendment, all other terms and conditions of the Original Agreement shall remain
in full force and effect.
2
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the day and year first above written.
ENDEAVOR TECHNOLOGIES INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Chief Executive Officer
SHAREHOLDERS:
XXXX PARTNERS
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxxx
--------------------------- --------------------------------
Xxxxxxx X. Xxxxxx By: Xxxxx X. Xxxxxxxx
Address: Address:
___________________________ ________________________________
___________________________ ________________________________
/s/ Xxxxxx X. Xxxxx, III
--------------------------- ________________________________
Xxxxxx X. Xxxxx, III Xxxxxx X. Xxxxx, M.D.
Address: Address:
___________________________ ________________________________
___________________________ ________________________________
___________________________ ________________________________
X. Xxxxxx Xxxxxx J. Xxx Xxxxx
Address: Address:
___________________________ ________________________________
___________________________ ________________________________
___________________________ Xxxxx Holdings I, L.P.
K. Xxxxxx Xxxxxxxx By Xxxxx Holdings, Inc.
Address:
___________________________ By:_____________________________
___________________________ J. Xxx Xxxxx, President
Xxxxxx Partners, Ltd. ________________________________
Xxxx X. Xxxxxx
Address:
By:________________________ ________________________________
Xxxxxxx X. Xxxxxx ________________________________
[Signatures continued on next page.]
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the day and year first above written.
____________________________ Woodlane L.L.C.
U. Xxxxxxx Xxxxx, Xx.
By:_____________________________
Address: X. Xxxxxxxxx Xxxxxx
____________________________
____________________________ Address:
________________________________
________________________________
____________________________ ________________________________
X. Xxxxxx Xxxxx Xxxxx X. Xxxxxxx
Address: Address:
____________________________ ________________________________
____________________________ ________________________________
____________________________ ________________________________
Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxx
Address: Address:
____________________________ ________________________________
____________________________ ________________________________
____________________________
Xxxxxxx X. Xxxxx
Address:
____________________________
____________________________
[Signatures continued on next page.]
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the day and year first above written.
PREMIERE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Its: Senior Vice President
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Address:
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
To change, upon occupancy of the
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Lenox Building by The Corporation
to Suite 700
5
