EXHIBIT 10.35
AMENDMENT NO. 2 AND CONSENT dated as of
December 11, 2002 (this "Amendment"), among
LPA HOLDING CORP., a Delaware corporation
(the "Corporation"), LPA INVESTMENT LLC, a
Delaware limited liability company ("LPA
Investment") and the other stockholders of
the Corporation signatory hereto, to the
STOCKHOLDERS AGREEMENT, dated as of May 11,
1998 (as amended on April 8, 1999, the
"Original Agreement"), among the
Corporation, LPA Investment and the other
stockholders signatory thereto. Capitalized
terms used herein but not defined herein
shall have the meanings ascribed to them in
the Original Agreement.
In consideration of the premises and the mutual benefits to be derived
from this Amendment and the covenants, agreements and conditions hereinafter set
forth, the parties hereto hereby agree as set forth below.
ARTICLE I
AMENDMENT
1.1 AMENDMENTS.
(a) The definition of "Requisite Management Stockholders"
in Section 1.1 of the Original Agreement is hereby deleted in its entirety and
the following definition inserted in lieu thereof:
'"Requisite Management Stockholder" means the Management
Stockholders who are full-time employees of the Corporation or
any Subsidiary and who hold in the aggregate in excess of 50
percent of the outstanding shares of Common Stock (including
shares of Common Stock issuable upon exercise or conversion of
Securities) then held by such Management Stockholders).'
(b) Section 2.2(c) of the Original Agreement is hereby
deleted in its entirety and replaced with the following language:
"one Director who shall be the Chief Executive Officer of the
Corporation (the "Management Director"); and"
(c) Section 2.2(d) of the Original Agreement is hereby
deleted in its entirety and replaced with the following language:
"upon such Persons' nomination by a majority of the LPA
Investment Class A Directors, the LPA Investment Class B
Director, and the Management Director, voting together as a
single group (the "Majority Directors"), (i) up to two
Directors who shall be individuals who are not employees,
directors, officers or Affiliates of the Corporation or any
Stockholder and (ii) if the Majority Directors exercise their
rights pursuant to the immediately preceding Section
2.2(d)(i), one additional Director who may be an employee,
director, officer of Affiliate of the Corporation or any
Stockholder (each director elected pursuant to the foregoing
sections (i) and (ii), an "Independent Director")."
(d) Section 9.7(a) of the Original Agreement is hereby
amended by deleting the phrase "Requisite Management Investors" where such
phrase appears in such section and inserting the phrase "Requisite Management
Stockholders" in lieu thereof.
(e) Subsections (i), (ii) and (iii) of Section 2.5(a) of
the Original Agreement are hereby deleted in their entirety and replaced with
the following language:
"(i) the Requisite LPA Investment Stockholders shall have the
right to remove, with or without cause, all or any of the LPA
Investment Directors, (ii) the Requisite Management
Stockholders shall have the right to remove, with or without
cause, the Management Director, and (iii) the Requisite
Stockholders shall have the right to remove, with or without
cause, all or any of the Independent Directors."
1.2 WAIVER AND CONSENT.
By signing below, the Requisite Management Stockholders hereby
expressly consent to the foregoing amendment pursuant to Section 9.7 of the
Original Agreement.
ARTICLE II
MISCELLANEOUS PROVISIONS
2.1 AGREEMENT.
Except as modified by this Amendment, the Original Agreement shall
remain in full force and effect, enforceable in accordance with its terms. This
Amendment is not a consent to any waiver or modification of any other terms or
conditions of the Original Agreement or any of the instruments or documents
referred to in the Original Agreement and shall not prejudice any right or
rights which the parties thereto may now or hereafter have under or in
connection with the Original Agreement or any of the instruments or documents
referred to therein.
2.2 EFFECTIVENESS.
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This Amendment shall be effective upon the execution hereof by the
Requisite Stockholders and the Requisite Management Stockholders.
2.3 COUNTERPARTS.
This Amendment may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute one agreement.
2.4 GOVERNING LAW.
This Amendment shall be governed and construed in accordance with the
laws of the State of Delaware.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
2 and Consent as of the date first written above.
LPA HOLDING CORP.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chief Operating Officer
LPA INVESTMENT LLC
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Assistant Secretary
VESTAR/LPT LIMITED PARTNERSHIP
By: VESTAR/LP Investment Limited
Partnership
By:
_________________________________________
Name:
Title:
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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-Signature Page to Amendment No. 2-
/s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxx Xxxxxxxx
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/s/ Xxxxxx Xxxx
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Xxxxx Xxxx
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Xxxxxxx Xxxx
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Bona Xxxxx
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Xxxx Xxxxxx
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Xxxxxxx Xxxxxxx
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Xxxx Xxxxxx
-Signature Page to Amendment No. 2-
