FIRST AMENDMENT TO THE AMENDED STOCKHOLDERS AGREEMENT
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THIS FIRST AMENDMENT TO THE AMENDED STOCKHOLDERS AGREEMENT (the
"Amendment") is made and entered into as of the 31st day of March, 1997, by
and among Xxxxxx Holdings, Inc., a Delaware corporation, Blackstone Capital
Partners II Merchant Banking Fund L.P., a Delaware limited partnership,
Blackstone Offshore Capital Partners II Merchant Banking Fund L.P., a Cayman
Islands limited partnership, Blackstone Family Investment Partnership L.P., a
Delaware limited partnership, Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, F. Xxxxx
Xxxxx and Xxxxxxx X. Xxxxxxxxx.
PRELIMINARY STATEMENT
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The Issuer, the Blackstone Investors and the Management Investors are
parties to that certain Amended Stockholders Agreement, dated as of January
29, 1997, by and among the Issuer and the investors listed on the signature
pages thereof (the "Stockholders Agreement"). The Issuer, the Blackstone
Investors and the Management Investors desire to amend the Stockholders
Agreement as set forth herein.
AGREEMENT
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In consideration of the mutual covenants contained in this Amendment and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, pursuant to Section 6.13(b) of the Stockholders
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Agreement, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall
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have the meanings assigned to them in the Stockholders Agreement.
2. Amendments.
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(a) Section 1.1 of the Stockholders Agreement shall be amended
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to modify the definition of "Affiliated Transferee" to read as follows:
"Affiliated Transferee" with respect to any Investor, means any
Person that (1) is (a) an Affiliate of such Investor, (b) an employee, limited
partner, general partner or director of such Investor, any spouse, sibling or
lineal ancestor or descendant of any such employee, limited partner, general
partner or director or (c) any trust for the benefit of, or any estate of, any
such spouse, sibling, ancestor or descendant and (2) has (a) agreed in writing
to be bound and (b) has become bound by the terms and conditions of this
Agreement to the same extent and in the same manner as the Investor
transferring Common Stock to such Person; provided, however, if such Person
is a direct or indirect transferee of one of the MLGA Investors or the MLGA
Partners, the Person need not satisfy the requirements of this clause (2) to
be deemed an "Affiliated Transferee."
(b) Section 1.1 of the Stockholders Agreement shall be amended
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to modify the definition of "Investors" to read as follows:
"Investors" means the collective reference to the Blackstone
Investors, the MLGA Investors, the Management Investors and the Other
Investors and each Person who becomes a Management Investor or Other Investor
pursuant to the provisions of this Agreement (including Section 6.10 hereof),
but the term shall not include any Private Transferees (other than Affiliated
Transferees who are required to become parties to this Agreement).
(c) Section 1.1 of the Stockholders Agreement shall be amended
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to modify the definition of "Management Investors" to read as follows:
"Management Investors" means the Management Investors listed as
such on the signature pages hereof, each Person that becomes a Management
Investor pursuant to Section 6.10 hereof, and each Affiliated Transferee of
any Management Investor.
(d) Section 1.1 of the Stockholders Agreement shall be amended
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to delete in its entirety the definition of "Permitted Transferee," which
definition shall not be replaced.
(e) Section 1.1 of the Stockholders Agreement shall be amended
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to modify the definition of "Private Transferee" to read as follows:
"Private Transferee" means any Person (including any
Affiliated Transferee) who acquires any Common Stock upon any sale,
assignment, transfer, distribution, participation in, pledge, transfer or
other disposition from a Holder or a direct or indirect Private Transferee
thereof, other than (i) pursuant to a Public Offering or (ii) pursuant to Rule
144 under the Securities Act after the Initial Public Offering. The term
"Private Transferees" shall mean any combination of such Private Transferees
and, with respect to any Holder, "Private Transferees" shall mean the
specified combination of such Private Transferees.
(f) The second sentence of Section 3.2(b) of the Stockholders
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Agreement shall be amended in its entirety to read as follows:
"If any shares of Common Stock are transferred to any Private
Transferee (other than an Affiliated Transferee who is required to agree in
writing to be bound by this Agreement), then upon the request of the Private
Transferee the second sentence of the legend required by Section 3.2(a) shall
be removed from the certificate evidencing the applicable Common Stock."
(g) Section 3.6(a) of the Stockholders Agreement shall be
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amended in its entirety to read as follows:
"(a) [Reserved]."
3. No Other Modification. Other than as specifically set forth in
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Section 2 of this Amendment, this Amendment shall not be construed as
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modifying or amending any term or provision of any agreement or document
including, but not limited to, the Stockholders Agreement. Other than as
modified pursuant to Section 2 of this Amendment, all rights, duties and
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obligations of the parties under the Stockholders Agreement shall continue in
full force and effect.
4. Entire Amendment. This Amendment and the Stockholders Agreement
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and the agreements and documents referenced therein collectively constitute
the entire agreement between the parties to this Amendment with respect to the
subject matter of this Amendment and the Stockholders Agreement, and supersede
all prior agreements, understandings and arrangements, oral or written,
between the parties to this Amendment, with respect to the subject matter of
this Amendment and the Stockholders Agreement. Except as specifically
provided in this Amendment, no party shall be deemed to have released or
waived any rights, obligations or claims. From and after the date of the
effectiveness of this Amendment, all references in the Stockholders Agreement
to the "Agreement" shall be deemed to be references to the Stockholders
Agreement after giving effect to this Amendment.
5. Counterparts. This Amendment may be executed in any number of
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counterparts and by the different parties hereto on separate counterparts,
each of which counterparts when executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
6. Governing Law. This Amendment and the rights and obligations of
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the parties hereunder shall be construed in accordance with and governed by
the law of the State of New York.
7. Effectiveness. This Amendment shall become effective on the date
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on which each of the Issuer, the Blackstone Investors and a majority of the
Management Investors shall have signed a copy hereof (whether the same or
different copies) and shall have delivered the same to the Issuer.
8. Successors, Assigns and Transferees. This Amendment shall be
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binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and assigns.
IN WITNESS WHEREOF, the Issuer and the Blackstone Investors have caused
this Amendment to be executed by duly authorized individuals and each of the
Management Investors has individually executed this Amendment as of the date
first set forth above.
"ISSUER"
XXXXXX HOLDINGS, INC.
/s/
By:
Its:
"BLACKSTONE INVESTORS"
BLACKSTONE CAPITAL PARTNERS II MERCHANT BANKING FUND L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES II L.L.C, general partner
/s/
By:
Title:
BLACKSTONE OFFSHORE CAPITAL PARTNERS II MERCHANT BANKING FUND L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES II L.L.C, general partner
/s/
By:
Title:
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES II L.L.C, general partner
/s/
By:
Title:
"MANAGEMENT INVESTORS"
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
/s/ F. Xxxxx Xxxxx
F. Xxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
