Exhibit 4.11
AMENDMENT NO. 1 TO SHAREHOLDERS AGREEMENT
Amendment No. 1 (this "Amendment"), dated as of November 30, 2000, to
the Shareholders Agreement (the "Shareholders Agreement"), dated as May 22,
1997, among Xxx Xxxxxxxx Corporation (the "Company"), DLJ Merchant Banking
Partners II, L.P. ("DLJMB"), DLJ Offshore Partners II, X.X., XXX Xxxxxxxxxxx
Xxxxxxxx, X.X., XXX EAB Partners, L.P., DLJMB Funding II, Inc., DLJ First ESC
L.L.C., UK Investment Plan 1997 Partners (each, a "DLJMB Entity", and
collectively, the "DLJMB Entities"), Xxxxxx X. Xxxxxxxx ("Uhlenhop"), the
Management Shareholders listed on Annex A thereto (individually, a "Management
Shareholder", and collectively, the "Management Shareholders"), and ZS XX XX,
L.P ("ZS"). Capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the Shareholders Agreement.
W I T N E S S E T H
WHEREAS, the Company, DLJMB, the DLJMB Entities, Uhlenhop, the
Management Shareholders and ZS are parties to the Shareholders Agreement; and
WHEREAS, the parties desire to amend certain provisions of the
Shareholders Agreement to, among other things, reduce from nine (9) to six (6)
the number of directors comprising the Board; and
WHEREAS, the parties have agreed to amend the Shareholders Agreement
and to enter into this Amendment upon the terms and subject to the conditions
contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereby agree as follows:
SECTION 1. AMENDMENTS TO SHAREHOLDERS AGREEMENT. Subject to the
satisfaction of the conditions set forth in Section 2 hereof, the Shareholders
Agreement is hereby amended as follows:
1.1 AMENDMENT TO SECTION 2.1. Section 2.1 is hereby amended by
deleting Section 2.1(a) in its entirety and replacing it with the following:
"(a) Subject to subsections (c), (d) and (e) below and
Section 8(b) of the Certificate of Designations, Preferences and
Rights of the Preferred Shares, the Board shall consist of six (6)
directors (or such smaller number as may be mutually agreed to by
DLJMB, ZS, so long as it owns beneficially 25% of its Initial
Ownership, and Uhlenhop, so long as he is the Chief Executive Officer
of the Company), four (4) of whom (including the Chairman of the
Board) shall be nominated by the DLJMB Entities, one (1) of whom shall
be nominated by ZS, and one (1) of whom shall be Uhlenhop so long as
he is the Chief Executive Officer of the Company and he owns
beneficially Common Shares and Vested Option Shares in an aggregate
amount equal to at least 2% of the Fully Diluted Common Shares;
PROVIDED, HOWEVER, that, if Uhlenhop is no longer serving as the Chief
Executive Officer of the Company (other than as a result of his
termination for "Cause" (as defined in the Uhlenhop Employment
Agreement)), but he owns
beneficially Common Shares and Vested Option Shares in an amount equal
to at least 2% of the Fully Diluted Common Shares (such 2% amount, the
"Uhlenhop 2% Threshold"), the Board shall consist of seven (7)
directors (or such smaller number as may be mutually agreed to by
DLJMB and ZS, so long as it owns beneficially 25% of its Initial
Ownership; PROVIDED THAT such reduction in the number of directors
shall in any event include and contemplate a directorship for Uhlenhop
so long as he owns beneficially Common Shares and Vested Option Shares
in an amount equal to or greater than the Uhlenhop 2% Threshold), four
(4) of whom (including the Chairman of the Board) shall be nominated
by the DLJMB Entities, one (1) of whom shall be nominated by ZS, one
(1) of whom shall be Uhlenhop so long as he owns beneficially Common
Shares and Vested Option Shares in an amount equal to at least 2% of
the Fully Diluted Common Shares, and one (1) of whom shall be the new
Chief Executive Officer of the Company who is duly appointed by the
Board; PROVIDED FURTHER, that, notwithstanding his Share ownership, if
Uhlenhop is no longer serving as the Chief Executive Officer of the
Company or Xxx Xxxxxxxx Press as a result of his being terminated for
"Cause" in accordance with the Uhlenhop Employment Agreement, then
Uhlenhop will no longer be entitled to serve as a director of either
the Company or Xxx Xxxxxxxx Press and the Board shall consist of six
(6) directors (or such smaller number as may be mutually agreed to by
DLJMB and ZS, so long as it owns beneficially 25% of its Initial
Ownership), four (4) of whom (including the Chairman of the Board)
shall be nominated by the DLJMB Entities, one (1) of whom shall be
nominated by ZS, and one (1) of whom shall be the new Chief Executive
Officer of the Company who is duly appointed by the Board"
1.2 AMENDMENT TO SECTION 2.4. Section 2.4 is hereby amended by
deleting the first sentence thereof in its entirety and replacing it with the
following:
"A majority of the entire Board shall constitute a quorum for the
transaction of business."
SECTION 2. CONDITIONS TO EFFECTIVENESS; CONSENT. The amendments in
Section 1 of this Amendment shall become effective on the date when (a)
counterparts hereof shall have been executed by each of (i) the DLJMB Entities
holding at least a majority of the Shares held by all DLJMB Entities, (ii) ZS
and (iii) the Management Shareholders holding at least a majority of the Shares
held by all Management Shareholders and (b) this Amendment shall have been
approved by the Board in accordance with the terms of the Shareholders Agreement
without giving effect to this Amendment. By executing its respective counterpart
hereof, each of the parties hereto shall be deemed to have consented to the
matters contemplated by this Amendment.
SECTION 3. EFFECT ON THE SHAREHOLDERS AGREEMENT. Except as amended
hereby, the Shareholders Agreement shall remain in full force and effect.
Nothing in this Amendment shall be deemed to (i) except as set forth herein,
constitute a waiver of compliance by any of the parties of any term, provision
or condition of the Shareholders Agreement or any other instrument or agreement
referred to therein or (ii) prejudice any right or remedy that any
2
party to the Shareholders Agreement may now have or may have in the future under
or in connection with the Shareholders Agreement.
SECTION 4. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which taken together constitute one and the same agreement.
SECTION 5. GOVERNING LAW. The validity, interpretation and enforcement
of this Amendment shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to the conflict of laws principles
thereof.
SECTION 6. HEADINGS. Section headings in this Amendment are included
herein for the convenience of reference only and shall not constitute part of
this Amendment for any other purpose.
SECTION 7. REFERENCES. References herein to the "Shareholders
Agreement", "this Agreement", "hereunder", "hereof", or words of like import
referring to the Shareholders Agreement, shall mean and be a reference to the
Shareholders Agreement as amended hereby, unless otherwise indicated.
[Signatures on following page]
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered as of the date set forth above.
XXX XXXXXXXX CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxx
Title:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice PResident
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ DIVERSIFIED PARTNERS, INC.
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President
[Signature Page to Amendment No. 1 to Shareholders Agreement, dated as of
May 22, 1997, among Xxx Xxxxxxxx Corporation and its stockholders]
4
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ EAB PARTNERS, L.P.
By: DLJ MERCHANT BANKING II, INC.
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJMB FUNDING II, INC.
By: /s/ Xxx Xxxxx
--------------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ FIRST ESC L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, Manager
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President
[Signature Page to Amendment No. 1 to Shareholders Agreement, dated as of
May 22, 1997, among Xxx Xxxxxxxx Corporation and its stockholders]
5
UK INVESTMENT PLAN 1997 PARTNERS
By: UK INVESTMENT PLAN 1997, INC.
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice President
ZS XX XX L.P.
By: ZS XX XX, L.L.C., General Partner
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Manager
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
XXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
XXXXX X. XXXXXX
[Signature Page to Amendment No. 1 to Shareholders Agreement, dated as of
May 22, 1997, among Xxx Xxxxxxxx Corporation and its stockholders]
6
/s/ Xxxxxx X. XxXxxx
--------------------------------------------
XXXXXX X. XXXXXX
/s/ Xxx X. Xxxxxxxx
--------------------------------------------
XXX X. XXXXXXXX
/s/ Xxxx X. Xxxxx
--------------------------------------------
XXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
XXXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
XXXXX X. XXXXXXXXX
/s/ Xxxx X. Xxxxxx
--------------------------------------------
XXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
XXXXXX X. XXXXXXX
[Signature Page to Amendment No. 1 to Shareholders Agreement, dated as of
May 22, 1997, among Xxx Xxxxxxxx Corporation and its stockholders]
7
