1
FIRST AMENDMENT
TO
INVESTMENT AGREEMENT
THIS FIRST AMENDMENT TO INVESTMENT AGREEMENT (this "First
Amendment"), dated as of January 27, 1999, is among LIH HOLDINGS III, LLC, a
Delaware limited liability company ("LIH Holdings III"), MASSACHUSETTS MUTUAL
LIFE INSURANCE COMPANY, a Massachusetts corporation ("MassMutual"), MASSMUTUAL
CORPORATE INVESTORS, a Massachusetts business trust ("MMCI"), MASSMUTUAL
PARTICIPATION INVESTORS, a Massachusetts business trust ("MMPI"), and MASSMUTUAL
CORPORATE VALUE PARTNERS LIMITED, a Cayman Islands corporation ("MMCVP";
MassMutual, MMCI, MMPI and MMCVP being hereinafter collectively referred to as
the "MassMutual Entities"), LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts
corporation ("Liberty Mutual"), BANCBOSTON CAPITAL INC., a Massachusetts
corporation ("BancBoston"; LIH Holdings III, the MassMutual Entities, Liberty
Mutual and BancBoston being hereinafter collectively referred to as the
"Purchasers"), and XXXX INTERNATIONAL HOLDINGS, INC., a Delaware corporation
(the "Company").
WHEREAS, the Purchasers and the Company originally entered
into the Investment Agreement, dated as of December 22, 1998 (the "Investment
Agreement"), whereby the Company agreed to sell, and the Purchasers agreed to
purchase, in the aggregate, 316,056 shares of the Common Stock, par value $0.10
per share (the "Common Stock"), of the Company and 39,822.9 shares of the Series
B Preferred Stock, par value $.01 per share (the "Series B Preferred Stock"), of
the Company for an aggregate purchase price equal to $5,000,000 (the "Aggregate
Purchase Price") in order to provide a portion of the funds for the acquisition
of all of the outstanding capital stock of Smitty Bilt, Inc. (the "Target");
WHEREAS, the Company and the stockholders of the Target have
entered into a definitive Stock Purchase Agreement, dated as of January 7, 1998
(as the same may be amended, supplemented or otherwise modified from time to
time in accordance with the provisions thereof, the "Stock Purchase Agreement");
WHEREAS, in lieu of the purchase and sale of the 316,056
shares of Common Stock contemplated by the Investment Agreement, the Company now
desires to sell to each of the Purchasers, and each of the Purchasers desires to
purchase from the Company, in the aggregate, an additional 31,605.6 shares of
Series B Preferred Stock (in addition to the aforementioned 39,822.9 shares of
Series B Preferred Stock), all without any change in the Aggregate Purchase
Price and otherwise on the terms and subject to the conditions set forth in the
Investment Agreement as amended by this First Amendment; and
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WHEREAS, the Purchasers and the Company desire to amend the
Investment Agreement to provide for the changes described above.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this First Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree to amend the Investment Agreement as follows:
ARTICLE I
AMENDMENTS TO INVESTMENT AGREEMENT
Effective as of the date hereof:
1.1 Series B Certificate of Designation. The definition of
"Series B Certificate of Designation" is hereby amended to read in its entirety
as follows:
""Series B Certificate of Designation" means, collectively,
(i) the Certificate of Designation with respect to the Series
B Preferred Stock filed with the Secretary of State of the
State of Delaware of December 22, 1998, and (ii) an amendment
to such Certificate of Designation, to be filed with the
Secretary of State of the State of Delaware prior to the
Closing, which has the sole effect of increasing the number of
shares of Series B Preferred Stock authorized by such
Certificate of Designation to 394,315."
1.2 Section 2.1. Section 2.1 of the Investment Agreement is
hereby amended by deleting "Common Stock and" in the third line of the first
sentence thereof.
1.3 Section 3.3. (a) Section 3.3 of the Investment Agreement
is hereby amended by replacing "292,225" with "394,315" in clause (i) thereof.
(b) Section 3.3 of the Investment Agreement is hereby amended
by replacing: "6,626,838" with "6,310,782", and "292,224.7" with "323,830.3", in
clause (ii) thereof.
1.4 Section 5.5. Section 5.5 of the Investment Agreement is
hereby amended to read in its entirety as follows:
"5.5 Nasdaq National Market. As soon as practicable after any
conversion of the Series B Preferred Stock, the Company shall
cause the shares of Common Stock issuable upon such conversion
of the Series B Preferred Stock to be approved for listing,
subject to notice of issuance, by the Nasdaq National Market."
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1.5 Section 6.13. Section 6.13 of the Investment Agreement is
hereby deleted from the Investment Agreement in its entirety.
1.6 Schedule I. Schedule I to the Investment Agreement is
hereby amended by deleting in its entirety Schedule I thereto and substituting
therefor Schedule I attached hereto. Accordingly, all references to Schedule I
in the Investment Agreement shall hereafter refer to Schedule I attached hereto.
ARTICLE II
MISCELLANEOUS
2.1 Agreement. Except as expressly amended hereby, the
Investment Agreement shall continue in full force and effect in accordance with
the provisions thereof on the date hereof, and this First Amendment shall not be
deemed to waive or amend any provision of the Investment Agreement except as
expressly set forth herein.
2.2 Headings; Construction. The headings used in this First
Amendment have been inserted for convenience of reference only and do not define
or limit the provisions hereof. The parties hereto agree that this First
Amendment is the product of negotiation between sophisticated parties and
individuals, all of whom were represented by counsel, and each of whom had an
opportunity to participate in and did participate in, the drafting of each
provision hereof. Accordingly, ambiguities in this First Amendment, if any,
shall not be construed strictly or in favor of or against any party hereto but
rather shall be given a fair and reasonable construction without regard to the
rule of contra proferentum.
2.3 Governing Law. This First Amendment shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York.
2.4 Counterparts; Effectiveness. This First Amendment may be
executed in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same instrument.
This First Amendment shall become effective as of the date hereof.
2.5 Definitions. Unless otherwise specifically defined herein,
each term used herein which is defined in the Investment Agreement shall have
the meaning assigned to such term in the Investment Agreement. Unless the
context otherwise specifically requires, each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Investment Agreement shall from and after the date hereof refer to the
Investment Agreement as amended hereby.
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IN WITNESS WHEREOF, this First Amendment has been duly
executed and delivered by the duly authorized officer or other representative of
each party hereto as of the date first above written.
XXXX INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxx
-------------------------------------------
Name: Xxxxxx X. Xxx
Title: Treasurer
LIH HOLDINGS III, LLC
By: /s/ Xxx X. Xxxxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Authorized Person
LIBERTY MUTUAL INSURANCE COMPANY
By: /s/ A. Xxxxxxxxx Xxxxxxxx
-------------------------------------------
Name: A. Xxxxxxxxx Xxxxxxxx
Title: Senior Vice President and
Chief Investment Officer
BANCBOSTON CAPITAL INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT TO INVESTMENT AGREEMENT]
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MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
MASSMUTUAL CORPORATE INVESTORS
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
The foregoing is executed on behalf
of MassMutual Corporate Investors,
organized under a Declaration of
Trust, dated September 13, 1985, as
amended from time to time. The
obligations of such Trust are not
personally binding upon, nor shall
resort be had to the property of,
any of the Trustees, shareholders,
officers, employees or agents of
such Trust, but the Trust's property
only shall be bound.
MASSMUTUAL PARTICIPATION INVESTORS
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
The foregoing is executed on behalf
of MassMutual Participation
Investors, organized under a
Declaration of Trust, dated April 7,
1988, as amended from time to time.
The obligations of such Trust are
not personally binding upon, nor
shall resort be had to the property
of, any of the Trustees,
shareholders, officers, employees or
agents of such Trust, but the
Trust's property only shall be
bound.
[SIGNATURE PAGE TO FIRST AMENDMENT TO INVESTMENT AGREEMENT]
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MASSMUTUAL CORPORATE VALUE
PARTNERS LIMITED
By Massachusetts Mutual Life Insurance
Company, as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
[SIGNATURE PAGE TO FIRST AMENDMENT TO INVESTMENT AGREEMENT]
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SCHEDULE I
PURCHASED
SECURITIES:
SERIES B AGGREGATE
PURCHASER PREFERRED STOCK PURCHASE PRICE ADDRESS FOR NOTICES
--------- --------------- -------------- -------------------
LIH Holdings III, 47,619.0 shares $3,333,333 LIH Holdings III, LLC
LLC c/o Harvest Partners, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
Liberty Mutual 9,523.8 shares $666,667 Liberty Mutual Insurance Company
Insurance Company 000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxx
Facsimile No.: (000) 000-0000
BancBoston Capital 9,523.8 shares $666,667 BancBoston Capital Inc.
Inc. 000 Xxxxxxx Xxxxxx
Mail Stop 75-10-01
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Massachusetts 1,971.4 shares $137,998 Massachusetts Mutual Life
Mutual Life Insurance Company
Insurance Company 0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
MassMutual 1,314.3 shares $92,001 MassMutual Corporate Value
Corporate Value Partners Limited
Partners Limited c/o Massachusetts Mutual Life
Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
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PURCHASED
SECURITIES: SERIES
B PREFERRED AGGREGATE
PURCHASER STOCK PURCHASE PRICE ADDRESS FOR NOTICES
--------- ----- -------------- -------------------
MassMutual 966.7 shares $67,669 MassMutual Corporate Investors
Corporate Investors c/o Massachusetts Mutual Life
Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
MassMutual 509.5 shares $35,665
Participation MassMutual Participation Investors
Investors c/o Massachusetts Mutual Life
Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Total shares of Total
Series B Aggregate
Preferred Stock Purchase
Purchased: Price:
---------- ------
71,428.5 shares $5,000,000
