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Exhibit 10.15
FOURTH AMENDMENT TO
STOCKHOLDERS' AGREEMENT
Fourth Amendment to Stockholders' Agreement (this "Amendment") dated as of
July 7, 1998 by and among FURNISHINGS INTERNATIONAL INC., a Delaware corporation
(the "Company"), Masco Corporation, a Delaware corporation ("Masco"), 399
Venture Partners, Inc., a Delaware corporation ("399") and Xxxxxxx X. Xxxxxxx,
as Voting Trustee under the Voting Trust Agreement (the "Trustee").
RECITALS
WHEREAS, the Company, Masco, 399 and the Management Stockholders are
parties to the Stockholders' Agreement dated as of August 5, 1996 by and among
the Company and its stockholders (as previously amended, the "Agreement");
(capitalized terms not otherwise defined herein are used as defined in the
Agreement);
WHEREAS, 399 has the right as the holder of HFG Common Stock representing
more than fifty percent (50%) of the HFG Common Stock on a Fully-Diluted Basis
then held by the Institutional Stockholders as a group, pursuant to Section
7.4(a)(i) of the Agreement to take action on behalf of the Institutional
Stockholders;
WHEREAS, the Trustee has the right pursuant to Section 7.4(a)(iii) of the
Agreement to take action on behalf of the Management Stockholders; and
WHEREAS, the parties hereto desire to amend the Agreement to provide for a
board of directors of the Company comprised of seven (7) persons instead of
eleven (11), to effect changes in the weighted voting of such directors and to
effect certain other amendments.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Amendments.
1.1 Board of Directors. Section 5.1(a) of the Agreement is hereby amended and
restated- in its entirety so that it reads as follows:
(a) From and after the date hereof, each of the Stockholders shall
vote or cause to be voted all of its shares of voting Common Stock (in the
Series or Class as described below), at any regular or special meeting of
stockholders called for the purpose of filling positions on the Board, or
to execute a written
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consent in lieu of such a meeting of stockholders for the purpose of
filling positions on the board, and shall take all actions necessary, to
ensure that the Board consists of seven (7) members as follows:
(i) shares of Series A-1 Common Stock shall be voted so as
to elect two (2) individuals (individually, an
"Institutional Director" and collectively, the
"Institutional Directors") to be designated by the
Institutional Stockholders for so long as the
Institutional Stockholders own (x) shares of Series A-1
Preferred or (y) at least ten percent (10%) of the
outstanding HFG Common Stock on a Fully-Diluted Basis,
and thereafter by the Nominating Committee; provided,
that, at any time, and from time to time, the
Institutional Stockholders, in their sole discretion,
may determine not to designate one or all of the
Institutional Directors, in which case such
Institutional Directors shall be designated by the
Nominating Committee;
(ii) two (2) individuals to be designated by vote of a
majority of the outstanding shares of Class C Common,
voting separately as a class (individually, a
"Management Director," and collectively, the "Management
Directors") each of whom must be either (A) the Chief
Executive Officer (or President), the Chief Operating
Officer, the Secretary, the General Counsel, the Chief
Financial Officer (or Treasurer) or the Chief Accounting
Officer of the Company, (B) a holder of Class C Common
or (C) with the consent of the Nominating Committee, any
person other than the persons described in clause (A) or
clause (B);
(iii) shares of Series A-2 Common Stock shall be voted as to
elect one (1) individual (the "Masco Director") to be
designated by the Masco Stockholders, for so long as the
Masco Stockholders own (x) shares of Series A-1
Preferred, (y) at least five percent (5%) of the
outstanding HFG Common Stock on a Fully-Diluted Basis or
(2) any Senior Notes; provided, that, at any time, and
from time to time, the Masco Stockholders, in their sole
discretion, may determine not to designate the Masco
Director, in which case such Masco Director shall be
designated by the Nominating Committee; and
(iv) subject to the exercise of the Regulatory Right under
Section 5.9, shares of Series A-3 Common Stock shall be
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voted so as to elect two (2) individuals (each
individual, a "Disinterested Director", and collectively
"Disinterested Directors") each of whom is not (A) an
Affiliate of 399, (B) employed by the Company or any
Subsidiary of the Company or (C) a Stockholder or an
Affiliate of any Stockholder, such Disinterested
Directors to be designated by the Nominating Committee.
povided, however, that (x) effective at the Closing, the Board shall consist of
the individuals set forth on Exhibit C hereto in the categories shown thereon
and (y) the Stockholders shall cause the Institutional Directors, the Masco
Director and the Management Directors named thereon to be designated and elected
as directors, and not to be removed by any Stockholder without cause, until
January 1, unless such person resigns, is otherwise unable to serve or ceases to
qualify as a Management Director under Section 5.1(a)(ii). The Nominating
Committee shall initially consist of one (1) Management Director, one (1)
Institutional Director and one (1) Disinterested Director (collectively, the
"Nominating Committee"), and upon the Closing the Nominating Committee shall
consist of the individuals set forth on Exhibit C hereto in the categories shown
thereon. The Nominating Committee shall act by majority vote, provided that, if
for any reason there shall be less than three (3) directors on the Nominating
Committee, it shall act by unanimous vote of the remaining director(s) on the
Nominating Committee. In the event that for any reason a Disinterested Director
on the Nominating Committee resigns or is removed from the Nominating Committee
or from the Board, the Nominating Committee shall (acting by the unanimous vote
of the remaining directors on the Nominating Committee) replace such
Disinterested Director with the other Disinterested Director. In the event that
the Management Stockholders do not designate either of the Management Directors,
the Nominating Committee will select one (1) additional Disinterested Director
who shall also serve on the Nominating Committee which will then consist of two
(2) Disinterested Directors and one (1) Institutional Director.
1.2 Weighted Board Voting. Section 5.4(a) of the Agreement is hereby
amended and restated in its entirety so that it reads as follows:
(a) The directors on the Board shall have weighted votes which
together total 1,000 votes, with each director having number of such votes
equal to the percentage set forth below:
(i) each Management Director will have a weighted vote of
10.5%, except that in the event that Xxxxx X. Xxxx is
one of the Management Directors, his weighted vote will
be shifted to 3.5% and the other Management Director's
weighted vote will be shifted to 17.5%, unless and until
(A) the Company receives a notice from Xx. Xxxx or Masco
that Xx. Xxxx is no longer a member of the board
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of directors of Masco or (B) Xxxxx X. Xxxx is no longer
a Management Director, at which time the weighted votes
of both of the Management Directors will shift back to
their original positions of 10.5% each;
(ii) the Masco Director will have a weighted vote of 15%;
(iii) each of the Institutional Directors will have a weighted
vote of 24.5%, except that in the event there are more
than 50 stockholders of the Company, such weighting
shall, upon notice to the Company from the Institutional
Stockholders, be shifted to 9.5% each, with a
corresponding shift in the weighting of each of the
Disinterested Director's weighted vote from 7.5% to
22.5%; (and thereafter the Institutional Stockholders
shall have the right upon notice to the Company to
increase the weighting back to its original position);
and
(iv) each Disinterested Director will have a weighted vote of
7.5% (subject to shifting as described in clause (iii)
above); such weighting shall be unaffected if one or
more of the Disinterested Directors is replaced or
designated by the Institutional Stockholders pursuant to
the Regulatory Right.
SECTION 2. Amendments.
2.1 Further Actions. Each of the parties hereto shall cooperate and shall
take further action and shall execute and deliver such further documents as may
be reasonably requested by any other party in order to carry out the amendments
set forth herein.
2.2 Governing Law. This Amendment shall be governed and construed in
accordance with the laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of New York,
except to the extent that the General Corporation Law of the State of Delaware
applies as a result of the Company being incorporated in the State of Delaware,
in which case such General Corporation Law shall apply.
2.3 Headings. The headings used in this Amendment have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
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2.4 Counterparts. This 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.
2.5 Consent to Jurisdiction; Service of Process; Waiver of Jury trial. The
provisions of Sections 7.18 and 7.19 of the Agreement shall apply to this
Amendment as if repeated herein.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
FURNISHINGS INTERNATIONAL INC.
By:__________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
MASCO CORPORATION
By:__________________________________
Name:
Title:
399 VENTURE PARTNERS, INC.
By:__________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
_____________________________________
Xxxxxxx X. Xxxxxxx, as Voting Trustee
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
FURNISHINGS INTERNATIONAL INC.
By:__________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
MASCO CORPORATION
By:__________________________________
Name:
Title:
399 VENTURE PARTNERS, INC.
By:__________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
_____________________________________
Xxxxxxx X. Xxxxxxx, as Voting Trustee
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
FURNISHINGS INTERNATIONAL INC.
By:__________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
MASCO CORPORATION
By:__________________________________
Name:
Title:
399 VENTURE PARTNERS, INC.
By:__________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
_____________________________________
Xxxxxxx X. Xxxxxxx, as Voting Trustee
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