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FIRST AMENDMENT
TO
RIGHTS AGREEMENT
THIS FIRST AMENDMENT (this "First Amendment"), dated as of
January 27, 1999, is among XXXX INTERNATIONAL HOLDINGS, INC., a Delaware
corporation (the "Company"), LIH HOLDINGS, LLC, a Delaware limited liability
company ("LIH Holdings I"), LIH HOLDINGS II, LLC, a Delaware limited liability
company ("LIH Holdings II"), LIH HOLDINGS III, LLC, a Delaware limited liability
company ("LIH Holdings III"; LIH Holdings I, LIH Holdings II and LIH Holdings
III being hereinafter collectively referred to as the "LIH Entities"),
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"), 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"), and NATIONAL CITY VENTURE
CORPORATION, a Delaware corporation ("NCVC"; NCVC and the MassMutual Entities
being hereinafter collectively referred to as the "Mezzanine Entities").
WHEREAS, the parties hereto originally entered into the Rights
Agreement, dated as of December 22, 1998 (the "Rights Agreement"), whereby each
of the parties thereto desired to provide for, among other things, registration
rights with respect to the Common Stock (as defined below) and to impose
restrictions on, and conditions to, certain transfers of equity securities of
the Company;
WHEREAS, the Purchasers (as defined in the Investment
Agreement) 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");
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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 which is being amended to reflect the same by a First
Amendment to the Investment Agreement, dated as of the date hereof, among the
Purchasers and the Company (the "First Amendment to the Investment Agreement");
and
WHEREAS, each of the LIH Entities, the Mezzanine Entities,
Liberty Mutual, BancBoston and the Company desire to amend the Rights Agreement
to provide for changes to the recitals to the Rights Agreement in order to
accurately describe the securities to be sold to the Purchasers pursuant to the
Investment Agreement as amended by the First Amendment to the Investment
Agreement.
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 Rights Agreement as follows:
ARTICLE I
AMENDMENT TO RIGHTS AGREEMENT
Effective as of the date hereof:
1.1 RECITALS. The third whereas clause of the Rights Agreement
is hereby amended by deleting "316,056 Shares of Common Stock and 39,822.9" in
the penultimate line thereof and replacing it with "71,428.5".
ARTICLE II
MISCELLANEOUS
2.1 AGREEMENT. Except as expressly amended hereby, the Rights
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 Rights Agreement except as
expressly set forth herein.
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2.2 HEADINGS, CERTAIN CONVENTIONS. The headings used in this
First Amendment have been inserted for convenience of reference only and do not
define or limit any terms or provisions hereof. Unless the context otherwise
expressly requires, all references herein to Articles, Sections and Exhibits are
to Articles and Sections of, and Exhibits to, this First Amendment. The words
"herein," "hereunder" and "hereof" and words of similar import refer to this
First Amendment as a whole and not to any particular Section or provision. The
words "include," "includes" and "including" shall be deemed to be followed by
the phrase "without limitation."
2.3 GOVERNING LAW. This First Amendment shall be governed by
and construed in accordance with the domestic 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 used herein,
each term used herein which is defined in the Rights Agreement shall have the
meaning assigned to such term in the Rights 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 Rights
Agreement shall from and after the date hereof refer to the Rights Agreement as
amended hereby.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, this 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
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Name: Xxxxxx X. Xxx
Title: Treasurer
LIH HOLDINGS, LLC
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: Authorized Person
LIH HOLDINGS II, LLC
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: Authorized Person
LIH HOLDINGS III, LLC
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: Authorized Person
LIBERTY MUTUAL INSURANCE COMPANY
By: /s/ A. Xxxxxxxxx Xxxxxxxx
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Name: A. Xxxxxxxxx Xxxxxxxx
Title: Senior Vice President and
Chief Investment Officer
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BANCBOSTON CAPITAL INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
MASSMUTUAL CORPORATE VALUE
PARTNERS LIMITED
By Massachusetts Mutual Life Insurance
Company, as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
MASSMUTUAL CORPORATE INVESTORS
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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.
[SIGNATURE PAGE TO FIRST AMENDMENT TO RIGHTS AGREEMENT]
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MASSMUTUAL PARTICIPATION INVESTORS
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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.
NATIONAL CITY VENTURE CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxx
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Name: Xxxxxxxxxxx X. Xxxx
Title: Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT TO RIGHTS AGREEMENT]
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