EXHIBIT 10.20
FIRST AMENDMENT
TO
STOCKHOLDERS AGREEMENT
This First Amendment to Stockholders Agreement (this "Amendment"),
dated as of January 21, 2002, hereby amends that certain Stockholders' Agreement
(the "Existing Agreement"), dated July 8, 1998, by and among Century Maintenance
Supply, Inc., a Delaware corporation (the "Company"), FS Equity Partners IV,
L.P., a Delaware limited partnership ("FSEP IV" or the "FS Stockholder"),
Xxxxxxx X. Xxxxxxx ("Xxxxxxx"), The Parthenon Group, Inc., a Delaware
corporation ("Parthenon" and collectively with Xxxxxxx, the "Additional
Stockholders"), Xxxxxx X. Xxxxxxx ("Xxxxxxx") and Century Airconditioning
Supply, Inc., a Texas corporation ("CAC", and collectively with Xxxxxxx, the
"Existing Stockholders"). Capitalized terms not otherwise defined herein shall
have the meaning ascribed to such terms in the Existing Agreement.
R E C I T A L S
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WHEREAS, the Company, FSEP IV, Xxxxxxx, Parthenon and the Existing
Stockholders, are parties to the Existing Agreement.
WHEREAS, Section 11 of the Existing Agreement permits the Existing
Agreement to be amended solely by FSEP IV so long as such amendment does not
prejudice the existing rights of the Existing Stockholders, Xxxxxxx or
Parthenon.
WHEREAS, FSEP IV, pursuant to Section 11 of the Existing Agreement,
desires to add Xxxxxx Xxxxxx ("Xxxxxx") as a party to the Existing Agreement on
terms and conditions which do not prejudice the rights of the Existing
Stockholders, Xxxxxxx or Parthenon.
WHEREAS, Xxxxxx, in connection with his acquisition of Company common
stock and appointment as the Company's Chief Executive Officer, has agreed to
become a party to the Existing Agreement.
NOW, THEREFORE, Xxxxxx hereby agrees to be bound by the terms and
conditions of the Existing Agreement, as amended by this Amendment, and FSEP IV
hereby consents and agrees to amend the Existing Agreement as follows:
1. Xxxxxx Xxxxxx. The Existing Agreement is hereby amended by
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adding the following definition after the definition of "Securities Act" and
before the definition of "Stockholders":
"Xxxxxx: Xxxxxx Xxxxxx."
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2. Additional Stockholders. The definition of "Additional
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Stockholders" in the Existing Agreement is hereby amended to read in its
entirety as follows:
"Xxxxxxx, Parthenon and Xxxxxx."
3. Permitted Transferee. The definition of "Permitted Transferee"
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in the Existing Agreement is hereby amended by removing clause (iii) and
substituting in its place a new clause (iii) as follows:
"(iii) with respect to Xxxxxxx, Xxxxxxx and Xxxxxx, a family
trust, limited partnership, corporation or other entity
established by Xxxxxxx, Xxxxxxx or Xxxxxx, as applicable,
all of the beneficiaries or owners of which are immediate
family members of Xxxxxxx, Xxxxxxx or Xxxxxx, as applicable,
(provided, that in the case of any entity established by
Xxxxxxx, Xxxxxxx or Xxxxxx, as applicable, pursuant to this
subparagraph (iii) other than such family trust, the owners
thereof shall specifically agree that, notwithstanding
anything contained in this Agreement to the contrary, such
owners shall not further Transfer their ownership interests
in such entity to any other Person), and"
4. Rights Upon Issuance of Additional Securities. Section 2 of the
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Existing Agreement is hereby amended and restated to read as follows:
"The Company hereby grants to each Initial Stockholder,
Xxxxxxx and Xxxxxx (Xxxxxxx and Xxxxxx collectively with the
Initial Stockholders, the "Notified Stockholders") the
following rights with respect to any and all proposed
issuances or sales of Additional Securities by the Company:"
5. Termination and Assignment. Section 2.5 of the Existing
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Agreement is hereby amended by removing clause (iii) and substituting in its
place a new clause (iii) as follows:
"(iii) with respect to Xxxxxxx and Xxxxxx, at such time that
the FS Stockholder's rights under this Section 2.5 shall
have terminated pursuant to subparagraph (ii) hereof."
6. Transfer Restrictions Binding Stockholders. The final sentence
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of Section 5.1(a) of the Existing Agreement is hereby amended and restated to
read as follows:
"The Transfer of Securities from any Stockholder to a
Permitted Transferee may be made without complying with
Section 5.2; provided, that each of such transferees
executes a written undertaking to be and becomes bound by
this Agreement in the
same manner and to the same extent as such Stockholder and,
in the case of Permitted Transferees of the Existing
Stockholders, Xxxxxxx, Parthenon or Xxxxxx, respectively,
(i) executes an irrevocable power of attorney appointing
Bearden, Johnson, Xxxxxxx Xxxxxxx and Xxxxxx Xxxxx, or
Xxxxxx, respectively (or an individual designated by such
individuals, as applicable, if such individual is unable to
act due to death or disability) as such transferee's
attorney-in-fact with sole irrevocable power and authority
to make all decisions on behalf of and take all actions
required to be taken by such transferee in connection with
this Agreement, including (without limitation) any required
sale of Securities pursuant to Section 4 hereof, and (ii) if
requested by the FS Stockholder, delivers an opinion of
legal counsel reasonably satisfactory to the FS Stockholder
that such undertaking is binding and enforceable."
7. Notices. Section 13 of the Existing Agreement is hereby amended
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by adding the following immediately after the "Facsimile: (000) 000-0000":
"If to Xxxxxx:
Xxxxxx Xxxxxx
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____________________
____________________
Telecopy No.: "
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first set forth above.
FS EQUITY PARTNERS IV, L.P.
a Delaware limited partnership
By: FS Capital Partners, LLC
Its: General Partner
By: /s/ J. Xxxxxxxxx Xxxxxxx
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J. Xxxxxxxxx Xxxxxxx
Managing Member
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
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