EXHIBIT 10.4
AMENDMENT NO. 1 TO STOCKHOLDERS' AGREEMENT
AMENDMENT NO. 1, dated as of June 2, 1997, to the Stockholders'
Agreement, dated as of March 4, 1997 (the "Stockholders' Agreement"), by and
among Packard BioScience Company, a Delaware corporation ("Packard"), the
Management Stockholders listed in Schedule 1 thereto, the Non-Management
Stockholders listed in Schedule 2 thereto, Xxxxxxx Xxxxx KECALP L.P. 1994,
KECALP Inc. and Stonington Capital Appreciation 1994 Fund, L.P.
WHEREAS, pursuant to, and in accordance with, Section 6.4 of the
Stockholders' Agreement, the parties hereto wish to amend the Stockholders'
Agreement on the terms contained herein.
NOW THEREFORE, the parties hereto agree as follows:
1. Amendments. The Stockholders' Agreement is hereby amended as
follows:
(a) Definitions.
(i) The following definitions shall be added to Article I of the
Stockholders' Agreement after the definition of the term
"Agreement" and before the definition of the term "Board of
Directors":
"Xxxxx Investors" shall mean Xxxxx Capital Partners II
Limited Partnership, a Wisconsin limited partnership, and BCP
II Affiliates Fund Limited Partnership, a Wisconsin limited
partnership.
"Xxxxx Shares" shall mean the Shares (from time to time)
beneficially owned by the Xxxxx Investors.
(ii) The definition of the term "Registrable Securities" in
Article I of the Stockholders' Agreement shall be amended by
adding to the second line of such definition after the words
"Institutional Shares" the words
", the Xxxxx Shares".
(iii) The definition of the term "Stockholders" in Article I of the
Stockholders' Agreement shall be amended by adding to the
fifth line of such definition after the words "Institutional
Shares" the words ", the Xxxxx Shares".
(b) Sale of Shares to a Third Party.
(i) Section 2.5(a) of the Stockholders' Agreement shall be
amended as follows: the words "and the Xxxxx Investors"
shall be added to the tenth line thereof after the words
"Permitted Transferees" and to the twentieth line thereof
after the words "Packard Investors"; the words "or Xxxxx
Shares, as the case may be," shall be added to the fourteenth
line thereof after the words "Packard Shares"; the words "and
each Xxxxx Investor" shall be added to the twenty-second line
thereof after the words "Packard Investor"; and the words "or
a Xxxxx Investor" shall be added to the twenty-seventh line
thereof after the words "Packard Investor".
(ii) Section 2.5(b) of the Stockholders' Agreement shall be
amended as follows: the words "and the Xxxxx Investors"
shall be added to the twelfth line thereof after the words
"Permitted Transferees"; and the words "or Xxxxx Shares, as
the case may be," shall be added to the fifteenth line
thereof after the words "Packard Shares".
(c) Certain Limitations. Section 2.7 of the Stockholders' Agreement
shall be amended to read in its entirety as follows:
"Limitation on Certain Investors. Notwithstanding anything
contained herein to the contrary, neither the Xxxxx Investors nor the
Institutional Investors may, without the prior written consent of Stonington,
sell or otherwise dispose of their Xxxxx Shares or their Institutional Shares,
as the case may be, prior to the sale or other disposition by Stonington of a
like proportion of its Stonington Shares and then only on the same terms and
conditions as Stonington's sale or other disposition; provided that, if Xxxxxxx
Xxxxx KECALP L.P. 1997 agrees in writing, in form and substance reasonably
satisfactory to Stonington and Packard, to become bound, and becomes bound, by
all the terms of this Agreement to the same extent as the Institutional
Investors are so bound, KECALP Inc. may transfer all, but not less than all, of
its Institutional Shares to Xxxxxxx Xxxxx KECALP L.P. 1997; and provided,
further, that (i) each Xxxxx Investor may transfer Xxxxx Shares held by it to
the other Xxxxx Investor and (ii) each Xxxxx Investor may sell Xxxxx shares
held by such Xxxxx Investor in accordance with the terms of Section 2.5
hereof."
(d) Waiver and Amendment. Section 6.4(a) of the Stockholders'
Agreement shall be amended to add to the end of the first proviso therein the
following words: ", and that any amendment that adversely affects the rights of
the Xxxxx Investor shall be of no force or effect unless the Xxxxx Investor
shall have consented in writing thereto".
(e) Notices. Section 6.6 of the Stockholders' Agreement shall be
amended to add after clause (d) thereof the following:
"(e) If to the Xxxxx Investor, to the address of the Xxxxx Investor
as shown in the stock record book of Packard or as from time to time designated
by the Xxxxx Investor in writing to Packard"
2. Governing Law. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of Delaware without reference to
the application of principles of conflicts of law.
3. Reaffirmation. In all respects not inconsistent with the terms and
provisions of this Amendment No. 1, the Stockholders' Agreement shall continue
to be in full force and effect in accordance with the terms and conditions
thereof, and is hereby ratified, adopted, approved and confirmed. From and
after the date hereof, each reference to the Stockholders' Agreement in any
other instrument or document shall be deemed a reference to the Stockholders'
Agreement as amended hereby, unless the context otherwise requires.
4. No Waiver. None of the execution, delivery or performance of this
Amendment No. 1 shall operate as a waiver of any condition, power, remedy or
right exercisable in accordance with the Stockholders' Agreement, or constitute
a waiver of any provision of the Stockholders' Agreement, except as expressly
provided herein.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Amendment No. 1, or has caused this Amendment No. 1 to be duly executed, as of
the date first above written.
PACKARD BIOSCIENCE COMPANY
By:
Name:
Title:
STONINGTON CAPITAL APPRECIATION 1994 FUND,
L.P.
By: Stonington Partners, L.P.,
its general partner
By: Stonington Partners, Inc. II,
its general partner
By:
Name:
Title:
Xxxxx X. Xxxxxx
Xxxxxxx X. XxXxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxx
COUNTERPART TO STOCKHOLDERS' AGREEMENT
The undersigned, by causing this Amendment No. 1 to be executed, hereby
agrees to be bound by all of the terms and conditions of the Stockholders'
Agreement as amended by this Amendment No. 1; this signature page also being
deemed to be a counterpart to the Stockholders' Agreement.
Dated as of the date
first written above:
XXXXX CAPITAL PARTNERS II LIMITED
PARTNERSHIP
By:
Name:
Title:
BCP II AFFILIATES FUND LIMITED PARTNERSHIP
By:
Name:
Title:
