Exhibit 10.4
EXECUTION COPY
AMENDMENT NO. 2 TO
SHAREHOLDERS AGREEMENT
Amendment No. 2, dated as of May 9, 1996, to the Shareholders
Agreement, dated as of September 19, 1988 (the "Shareholders Agreement"), as
amended, among Xxxxxxxx'x, Inc., a Delaware corporation (the "Company"), and
certain holders of the Company's Common Stock, par value $.01 per share (the
"Common Stock"), that are listed on the signature pages hereof (collectively,
the "Supermajority Holders"). Capitalized terms used but not defined herein
have the meanings ascribed thereto in the Shareholders Agreement.
WHEREAS, on May 7, 1996, Xxxxxxxx'x Holdings, Inc., a Maryland
corporation ("Holdings"), the original party to the Shareholders Agreement, was
merged with and into a new wholly-owned Delaware subsidiary of Holdings ("New
Holdings") and on May 8, 1996, New Holdings subsequently was merged with and
into the Company, with the Company being the surviving corporation (the
"Holdings Merger") and whereby the Company succeeded to the rights and
obligations of Holdings under the Shareholders Agreement;
WHEREAS, upon consummation of the Holdings Merger, each share of
Holdings common stock, par value $0.008403361 per share, will be converted into
.223446 shares of the Company's common stock, par value $0.01 per share (the
"Common Stock");
WHEREAS, pursuant to a Registration Statement filed with the
Securities and Exchange Commission, the Company may sell up to 3,572,000 shares
of Common Stock and certain shareholders of the Company may sell up to 535,800
2
shares of Common Stock pursuant to the underwriters' overallotment option
(collectively, the "Initial Public Offering"), and as a result, upon
consummation of the Initial Public Offering, the Shareholders Agreement might
otherwise terminate pursuant to section 7.10 thereof; and
WHEREAS, the parties desire to amend the Shareholders Agreement
to enable certain provisions thereof to continue in effect following the
Initial Public Offering.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. Section 7.10 of the Shareholders Agreement is hereby
amended and restated to read in its entirety as follows:
"This Agreement, other than the Surviving Provisions, shall terminate and
be of no further force or effect (i) when 40% of the Common Shares then
outstanding have been sold pursuant to one or more Public Offerings,
provided that such 40% shall be calculated after giving effect to and
upon completion of such Offering or Offerings or (ii) upon a vote in
favor of terminating this Agreement by the Supermajority Holders at the
time of termination; provided, however, that the Surviving Provisions
shall terminate and be of no further force or effect upon the earliest
of (i) when 60% of the Common Shares then outstanding shall have been
sold pursuant to one or more public Offerings (including the Initial
Public Offering), provided that such 60% shall be calculated after
giving effect to and upon completion of such offering or offerings,
(ii) immediately following the Company's 1998 annual meeting of
stockholders and (iii) upon the vote in favor of terminating this
Agreement by the Supermajority Holders at the time of termination.
For purposes of this Section 7.10, the Surviving Provisions shall
mean Articles 3 (other than Sections 3.1(a)(iv) and 3.1(a)(v)) and
Article VII, as amended hereby."
2. Except as specifically amended hereby, the Shareholders
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
3
3. This Amendment No. 2 shall be governed by and construed in
accordance with the laws of the State of New York as to agreements made and to
be performed entirely within such state.
4. This Amendment No. 2 may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be duly executed as of the date first written above.
XXXXXXXX'X, INC.
By: /s/Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: President
SEFINCO LTD., a Bermuda corporation
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
SPROUT CAPITAL V, a partnership
organized under the laws of New York
By: DLJ GROWTH ASSOCIATES, as
General Partner
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
4
SPROUT GROWTH, L.P., a partnership
organized under the laws of Delaware
By: DLJ GROWTH ASSOCIATES, as
General Partner
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
SPROUT GROWTH, LTD., a corporation
organized under the laws of
Cayman Islands
By: DLJ GROWTH ASSOCIATES, as
Attorney-in-fact
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
DLJ VENTURE CAPTIAL FUND II, L.P., a
limited corporation organized
under the laws of Delaware
By: DLJ GROWTH ASSOCIATES, as
General Partner
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
XXXXXXXXX, LUFKIN & XXXXXXXX,
INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
5
/s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
c/x Xxxxxxxx'x, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000
Telephone:
