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EXHIBIT 10.26
Amendment No. 1 to
Investment Services Agreement
This Amendment No. 1 to Investment Services Agreement ("Amendment") is
made and entered into as of the 5th day of March, 1999 by and between WinsLoew
Furniture, Inc., a Florida corporation (the "Company"), and Trivest II, Inc., a
Florida corporation ("Trivest II").
Preliminary Statements
A. The Company and Trivest, Inc., a Delaware corporation ("Trivest"),
entered into an Investment Services Agreement dated as of December 16, 1994
("Agreement").
B. Trivest, Trivest II and the Company entered into an Assignment and
Assumption Agreement dated as of January 1, 1996 ("Assignment") pursuant to
which Trivest assigned its rights and obligations under the Agreement to
Trivest II.
C. Trivest Furniture Corporation, a Florida corporation ("Purchaser"),
and the Company have entered into an Agreement and Plan of Merger ("Merger
Agreement") of even date herewith.
D. Trivest II and the Company desire to amend the Agreement as
provided in this Amendment.
NOW, THEREFORE, in consideration of the mutual premises and the
agreements set forth herein, the parties agree as follows:
1. The following Section 17 shall be added in its entirety:
17. Application to Proposed Going Private Transaction.
(a) Notwithstanding any provision of this Agreement, the parties agree
and acknowledge:
(i) If the Merger Agreement is terminated by reason of the Company
entering into an agreement with respect to a Superior Proposal (as defined in
the Merger Agreement), the Termination Fee (as defined in the Merger Agreement)
is paid to Purchaser, and the transaction contemplated by such Superior
Proposal is consummated, then Trivest II shall not be entitled to any
compensation pursuant to Section 6.3 of this Agreement as a result of the
Company entering into an agreement or closing a transaction for such Superior
Proposal.
(ii) Trivest II is not entitled to any compensation or expense
reimbursement under this Agreement related to any transaction contemplated by
the Merger Agreement or any Superior Proposal, and Trivest II is not deemed to
be providing services to, or acting on behalf of, the Company in connection
with any such transaction. No such transaction constitutes a transaction for
which Trivest is entitled to compensation under Section 6.3(b) Paragraph (a)
above does not in any way affect amounts otherwise due Trivest II (i) under
Sections 6.1 or 6.2 of this Agreement, or (ii) under Sections 4 or 6.3 related
to a transaction other than the Merger or any Superior Proposal.
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2. Except as specifically set forth herein, all terms and conditions
of the Agreement, as modified by the Assignment, shall continue in full force
and effect and all terms used herein shall have the same meanings set forth in
the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed by their authorized representatives on the date first above
written.
TRIVEST II, INC.
By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
Chief Executive Officer
WINSLOEW FURNITURE, INC.
By: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
President and Chief Executive Officer
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