EXHIBIT 2
ATTORNEY WORK PRODUCT
PRIVILEGED AND CONFIDENTIAL
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PROJECT HOT `N COLD IV
TERM SHEET
Amendment No. 1
This AMENDMENT NO. 1 TO THE PROJECT HOT `N COLD IV TERM SHEET (the
"Amendment") is entered into this 7th day of February, 2001, by and between
Xxxxxxxxxx Fund II, L.P. ("Xxxxxxxxxx") and Quilvest American Equity Ltd.
("Quilvest"). Capitalized terms used but not otherwise defined herein shall have
the meanings set forth in the Project Hot `n Cold IV Term Sheet, entered into
January 16, 2001 (the "Agreement").
1. Stockholders Agreement. The fifth paragraph of Section C of the Agreement
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is deleted in its entirety and the following is substituted therefor:
Stockholders Agreement: The Buyers shall enter into a
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stockholders agreement (the "Stockholders Agreement") providing
for, among other things: (i) the organization and capitalization
of Newco; (ii) certain restrictions on the transfer of the
capital stock of both Newco and, upon consummation of the Merger,
the Company; (iii) the voting of the capital stock of both Newco
and, upon consummation of the Merger, the Company; and (iv) the
composition of the boards of directors of Newco, and, upon
consummation of the Merger, the Company. Additionally, upon
consummation of the Merger, the Stockholders Agreement shall be
deemed to supersede, replace and terminate that certain
Shareholders Agreement dated February 18, 2000, among the Buyers,
the Company and Willem X.X. xx Xxxxx (the "Original Shareholders
Agreement"). It is the intention of the Buyers and Willem X.X.
xx Xxxxx that, upon consummation of the Merger and the
replacement and termination of the Original Shareholders
Agreement, Willem X.X. xx Xxxxx shall have no further rights or
obligations under the Original Shareholders Agreement.
2. Expenses. The second sentence of Section G of the Agreement is deleted in
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its entirety and the following is substituted therefor:
Upon consummation of the Merger, it is anticipated that: (i)
each of Xxxxxxxxxx and Quilvest shall be reimbursed for their
respective expenses by Newco; (ii) Newco shall pay to Quilvest
the full amount of the Consideration, without deduction or offset
whatsoever (including with respect to taxes), which becomes due
and owing to Quilvest in connection with the cancellation of the
common stock of the Company pursuant to the Merger Agreement (as
defined below); and (iii) Newco shall release and forever
discharge Quilvest from and against any claims which it may have
ATTORNEY WORK PRODUCT
PRIVILEDGED AND CONFIDENTIAL
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against Quilvest or its successors and assigns with respect to
any taxes which may be required to be paid by or with respect to
Quilvest in connection with its receipt of the Consideration in
connection with the cancellation of the common stock of the
Company pursuant to the Merger Agreement (as defined below).
3. Extension of Deadline. Section H of the Agreement is deleted in its
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entirety and the following is substituted therefor:
If the Merger Agreement has not been entered into by 5:00 p.m.
New York City time on February 21, 2001, or, if entered into, the
Merger Agreement is subsequently terminated, this Term Sheet
shall become null and void, unless extended by mutual agreement
of the parties, except that each party shall continue to be bound
by the provisions relating to Expenses.
4. Continued Effect. Except as otherwise amended herein, all other provisions
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of the Agreement shall remain in full force and effect.
5. Counterparts. This Amendment may be executed by facsimile and in more than
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one counterpart, each one of which shall be deemed an original, and all of which
taken together shall constitute one and the same instrument.
XXXXXXXXXX FUND II, L.P. QUILVEST AMERICAN EQUITY LTD.
By: Xxxxxxxxxx Associates II, LLC,
General Partner
By:_________________________ By:_________________________
Name: Name:
Title: Title: Attorney-in-Fact
