AMENDMENT TO SHAREHOLDERS AGREEMENT
THIS AMENDMENT (the "Amendment") TO THAT CERTAIN SHAREHOLDERS
AGREEMENT, dated as of October 16, 1997 (the "Shareholders Agreement"), is made
and entered into as of December 9, 1997 by Xxxxxx Acquisition, LLC, a Delaware
limited liability company ("Parent"), Xxxxxx Acquisition, Inc., a New York
corporation and a wholly-owned subsidiary of Parent ("Acquisition"), and the
parties listed on Schedule A (the "Xxxxxxxx Parties"), the parties listed on
Schedule B (the "Benach Parties") and the parties listed on Schedule C (the
"Aboodi Parties") (each party on Schedules A, B and C shall be referred to
individually as a "Shareholder" and collectively as the "Shareholders", and
each of the Xxxxxxxx Parties, as a group, the Benach Parties, as a group, and
the Aboodi Parties, as a group, shall be referred to as a "Group of
Shareholders" or Shareholder Group").
WITNESSETH:
WHEREAS, on October 16, 1997, Acquisition and Xxxxxxxx Corporation, a
New York corporation (the "Company"), entered into an Agreement and Plan of
Merger (as such agreement may hereafter be amended, restated or renewed from
time to time, the "Merger Agreement"), pursuant to which Acquisition agreed to
commence a cash tender offer to purchase any and all outstanding shares of
common stock, par value $1.00 per share, of the Company (the "Company Common
Stock"), including all of the shares listed on the schedules hereto (the
"Shares"), at a price per share of $12.25 (the "Offer Price"). Capitalized
terms used and not defined herein shall have the respective meanings ascribed
to them in the Merger Agreement; and
WHEREAS, on October 16, 1997, Parent, Acquisition and the Shareholders
entered into the Shareholders Agreement whereby the Shareholders agreed to
tender the Shares Beneficially Owned by the Shareholders (as such terms are
defined in the Shareholders Agreement); and
WHEREAS, the Shareholders have tendered (and not withdrawn) the
Shares; and
WHEREAS, in order to benefit the Company's public shareholders and
facilitate consummation of the Offer, the Merger and the financing thereof, the
Shareholders desire to amend the Shareholders Agreement to provide that the
Shareholders will provide to Acquisition certain funds for the consummation of
the transactions contemplated by the Merger Agreement; and
WHEREAS, the Shareholders desire to provide such funds by offsetting
the amount of such funds against the Offer Price the Shareholders would
otherwise receive upon consummation of the Offer.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Section 2 of the Shareholders Agreement is hereby amended by adding
the following subsections:
(c) Funding by Shareholders. The Shareholders hereby agree to
pay to Acquisition $2,641,413.98 or $0.8127 per share of Common Stock of the
Company heretofore tendered by the Shareholders, in accordance with the
provisions set forth in Section 2(d) below.
(d) Offset against Offer Price. The payment referred to in
Section 2(c) above shall be made by an offset, on a per share basis, against
the Offer Price the Shareholders would have received upon consummation of the
Offer for the Shares tendered by them. The Shareholders hereby authorize
Acquisition to instruct ChaseMellon Shareholder Services, as the Depositary,
that the price per share disbursed to each Shareholder as payment for the
shares tendered by such Shareholder shall equal the Offer Price minus $0.8127.
A copy of such instruction letter is attached hereto as Exhibit A.
2. As amended hereby, the Shareholders Agreement shall remain in full
force and effect.
3. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly received if so given) by hand delivery, or by mail (registered or
certified mail, postage prepaid, return receipt requested) or by any courier
service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses or the addresses set forth on the signature pages hereto:
If to Parent or Acquisition: Xxxxxx Acquisition, LLC
and
Xxxxxx Acquisition, Inc.
c/o Xxxxxxxx Xxxxx Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxx
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copies to: Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxx, Esq.
If to the Company: Xxxxxxxx Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
copies to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
If to Shareholder: At the addresses set forth on the signature
pages
copies to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
and Xxxxx X. Xxxx, Esq.
Xxxxxxxxx Properties Corp.
1271 Avenue of the Americas
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
4. This Agreement shall be governed and construed in accordance with
the laws of the State of New York, without giving effect to the principles of
conflicts of law thereof.
5. Each party hereby irrevocably submits to the exclusive jurisdiction
of the Supreme Court in the State of New York in any action, suit or proceeding
arising in connection with this Agreement, and agrees that any such action,
suit or proceeding shall be brought only in such court (and waives any
objection based on forum non conveniens or any other objection to venue
therein); provided, however, that such consent to jurisdiction is solely for
the purpose referred to in this Section 5 and shall not be deemed to be a
general submission to the jurisdiction of said Court or in the State of New
York other than for such purposes. Each party hereto hereby waives any right to
a trial by jury in connection with any such action, suit or proceeding.
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6. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original, but all of which, taken together, shall constitute
one and the same Agreement. This Agreement shall not be effective as to any
party hereto until such time as this Agreement or a counterpart thereof has
been executed and delivered by each party hereto.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed on this 9th day of December, 1997.
ON BEHALF OF EACH OF THE
XXXXXXXX PARTIES
c/x Xxxxxxxx Properties Corp.
1271 Avenue of the Americas
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
By: /s/ Xxxx Xxxxxxxx
------------------------------
Xxxx Xxxxxxxx
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxx
ON BEHALF OF EACH
OF THE BENACH
PARTIES c/o Xxxxx
Xxxxxx 0000 Xxxx
Xxxxx Xxxxx Xxxx
Xxxxx Xxxxxxx,
Xxxxxxx 00000
By: /s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx
OEA PARTNERS
c/o Alpine Capital Group
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxx
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
---------------------------
Title: Authorized Signatory
--------------------------
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KADIMA PARTNERS
c/o Alpine Capital Group
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxx
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
---------------------------
Title: Authorized Signatory
--------------------------
/s/ Xxxx Xxxxxx
-----------------------------------
XXXX XXXXXX
Alpine Capital Group
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX ACQUISITION, LLC
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
---------------------------
Title: President
--------------------------
XXXXXX ACQUISITION, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
---------------------------
Title: President
--------------------------
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SCHEDULE A
Xxxxxxxx Parties No. of Shares
---------------- -------------
Xxxx Xxxxxxxx 158,000
The PIM Holding Company 490,877
PIM Holdings 98,499
The PIM Holding Co. 100
PIM Holding Special Acct. I 1
The SVM Holding Company 59,408
SVM Foundation UA 12/19/96
Xxxxxxx Xxxxxxxx & Xxxxxx
Xxxxxxxx TR 23,779
Builtland Partners 600,000
Xxxxxxxx Family Foundation, Inc. 542,423
Xxxxxxx Associates 109,441
Northmon Investment Company 10,000
Xxxx Xxxxxxxx 16,250
Xxxxxxx Xxxxx Xxxxxxxx 12,300
Xxxxxx X. Xxxxxxxx 25
Xxxxxx Xxxxxxxx 15,375
Xxxx Xxxxxxxx Cust Xxxxxx Xxxxxxxx
Xxxxxxxx Unif Gift Min Act NY 1,900
Xxxxxx Xxxxx 10,000
Xxxxxx Xxxxxxxx & Xxxx X. Xxxxxxxx JTTEN 5,010
PLM Foundation (Xxxxxx Xxxxxxxx) 10,000
Xxxxxx Xxxxxxxx Xxxxxxx 675
2,174,063
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SCHEDULE B
Benach Parties No. of Shares
-------------- -------------
Xxxxx Xxxxxx 423,298
Benhome Associates L.P. 142,900
The Xxxxx and Xxxxxxx Xxxxxx Foundation 21,500
Xxxxxxx Xxxxxx 1,050
Home Associates 100,000
688,748
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SCHEDULE C
Aboodi Parties No. of Shares
-------------- --------------
Xxxx Xxxxxx 28,600
OEA Partners 50,000
Kadima Partners 308,760
387,360
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