AMENDMENT NO. 1 TO INVESTOR STOCKHOLDERS AGREEMENT
THIS AMENDMENT TO INVESTOR STOCKHOLDERS AGREEMENT, dated as of
September 1, 1998 (this "Amendment and Waiver"), amends the Investor
Stockholders Agreement dated as of May 22, 1997 (the "Investor Stockholders
Agreement"), by and among SCOTSMAN HOLDINGS, INC. (the "Company"), CYPRESS
MERCHANT BANKING PARTNERS L.P. ("Cypress Onshore"), CYPRESS OFFSHORE PARTNERS
L.P. ("Cypress Offshore"), SCOTSMAN PARTNERS, L.P. ("Scotsman Partners",
together with Cypress Onshore and Cypress Offshore, "Investor Group
Stockholders"), ODYSSEY PARTNERS, L.P. ("Odyssey"), XXXXX X. XXXXXXX ("BPG") and
BT INVESTMENT PARTNERS, INC. ("BTIP", collectively with the Investor Group
Stockholders, Odyssey and BPG, the "Stockholders"). Capitalized terms used
herein but not otherwise defined herein shall have the meanings assigned thereto
in the Investor Stockholders Agreement.
WHEREAS, the Company and the Stockholders have entered into the
Investor Stockholders Agreement;
WHEREAS, Xxxxxxxx Scotsman, Inc., a Maryland corporation and a
wholly-owned subsidiary of the Company ("WSI"), will purchase all of the
outstanding capital stock of Space Master International, Inc., a Georgia
corporation, pursuant to a Stock Purchase Agreement, dated July 23, 1998,
between WSI and Xxxxxxx X. Xxxxxxxxxx (the "Transaction");
WHEREAS, the Transaction will be financed in part by the purchase
by the Investor Group Stockholders and Odyssey Investment Partners Fund, LP
("OIPF") of additional shares of Common Stock, pursuant to separate Subscription
Agreements, dated the date hereof (the "Equity Purchases");
WHEREAS, the parties desire to amend the Investor Stockholders
Agreement to reflect the Equity Purchases and certain transfers of the Common
Stock and to reflect the addition of OIPF and Odyssey Coinvestors, LLC ("Odyssey
Coinvestors," together with OIPF, "Odyssey Investment Group") as parties to the
Investor Stockholders Agreement;
WHEREAS, as a result of certain transfers of Common Stock to be
effected after the date hereof, Odyssey Investment Group will own all the Shares
currently owned by Odyssey; and
WHEREAS, certain of the parties desire to waive certain rights to
subscribe for additional shares of Common Stock in connection with the
Transaction under the Investor Stockholder Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Amendment. Effective on the date hereof, the Investor
Stockholders Agreement shall be amended as set forth below:
1.1 Section 2.2(a) of the Investors Stockholders Agreement shall
be amended by adding the following new section (vi):
"(vi) in the case of Odyssey, to either or both of OIPF and
Odyssey Coinvestors and, in the case of OIPF, to Odyssey Coinvestors;"
1.2 Section 2.2(b) of the Investors Stockholders Agreement shall
be amended by adding to the end thereof the following proviso:
"; provided that in the case of any Transfer pursuant to section
2.2(a)(vi) above made prior to October 31, 1998, such written notice
shall be made not less than one day prior to effecting such Transfer."
1.3 Sections 4.2, 4.3 and 4.4 of the Investor Stockholders
Agreement are hereby amended and restated in their entirety as follows:
"4.2 Election of Directors. (a) Each Investor Group Stockholder
and Odyssey Investment Group agrees that, except as the Investor Group
Stockholders and Odyssey Investment Group may otherwise agree in
writing, the number of directors constituting the entire Board of
Directors shall be nine (or eight, if the Chairman of the Board of
Directors and the President of the Company shall be the same
individual), comprised of the following individuals:
(i) three individuals designated by the Cypress Group;
(ii) three individuals designated by the SP Group;
(iii) one individual designated by OIPF;
(iv) the individual then serving as the Chairman of the Board
of Directors of the Company; and
(v) the individual then serving as the President of the
Company.
(b) If as a result of Section 4.4, the Cypress Group, the SP
Group or OIPF is entitled to designate a lesser number of directors than it is
entitled on the date hereof to designate pursuant to Section 4.2(a), then each
Investor Group Stockholder and Odyssey Investment Group shall vote its Shares to
cause the number of directors constituting the entire Board of Directors to be
reduced by the number of directors that the Cypress Group, the SP Group or OIPF
is no longer entitled to designate.
4.3 Removal and Replacement. Each of the Cypress Group, the SP
Group and OIPF shall be entitled at any time and for any reason (or for no
reason) to designate any or all of its designees on the Board of Directors for
removal, and the Cypress Group and the SP Group, acting in accordance with
clause (1) of Section 4.5, shall be entitled at any time and for any reason (or
for no reason) to designate any of the directors designated under Section
4.2(a)(iv) or 4.2(a)(v) for removal. Subject to Section 4.4, if at any time a
vacancy is created on the Board of Directors by reason of the death, removal or
resignation of any director, then:
(i) in the case of a director designated pursuant to Section
4.2(a)(i), (ii) or (iii), the Cypress Group, the SP Group or OIPF shall,
as soon as practicable thereafter, designate a replacement director and,
as soon as practicable thereafter, each of the Investor Group
Stockholders and OIPF shall take action, including, if necessary, the
voting of its Shares, to elect or cause the election by the Board of
Directors of such replacement director in accordance with Section
4.2(a)(i) or (ii), as the case may be; and
(ii) in the case of a director designated pursuant to Section
4.2(a)(iv) or (v), the Board of Directors shall, as soon as practicable
thereafter (and subject to clause (1) of Section 4.5), except as the
Investor Group Stockholders may otherwise agree in writing, designate a
new Chairman of the Board or President, as the case may be, of the
Company and, as soon as practicable thereafter, each of the Investor
Group Stockholders, OIPF and Odyssey shall take action, including, if
necessary, the voting of its Shares, to elect such new Chairman of the
Board or President, as the case may be, as a director in accordance with
Section 4.2(a)(iv) or (v), as the case may be.
Subject to Section 4.4, if at any time a vacancy is created on the Board
of Directors by reason of the death, removal or resignation of any
director designated pursuant to Section 4.2(a)(i) or (ii), then the
Board of Directors shall not conduct any business (other than business
incident to the designation and election of a replacement director in
accordance with this Section 4.3) until a replacement director has been
designated by the Cypress Group or the SP Group, as the case may be;
provided that the foregoing restriction on the transaction of business
shall terminate five days after the creation of such vacancy if no such
replacement director has been designated.
4.4 Reduction in Number of Directors. Notwithstanding anything
herein to the contrary:
(i) (A) from and after the date that the Cypress Group and its
Permitted Transferees (other than its Clause (iii) permitted
Transferees) own in the aggregate Shares representing 5% or more but
less than 20% of the outstanding Common Stock, the Cypress Group shall
be entitled to designate one director for election or removal pursuant
to Section 4.2(a) or 4.3, and (B) from and after the date that the
Cypress Group and such Permitted Transferees own in the aggregate Shares
representing less than 5% of the outstanding Common Stock, the Cypress
Group shall no longer be entitled to designate any directors for
election or removal pursuant to Section 4.2(a) or 4.3;
(ii) (A) from and after the date that Scotsman Partners and its
Permitted Transferees (other than its Clause (iii) Permitted
Transferees) own in the aggregate Shares representing 5% or more but
less than 20% of the outstanding Common Stock, the SP Group shall be
entitled to designate one director for election or removal pursuant to
Section 4.2(a) or 4.3, and (B) from and after the date that Scotsman
Partners and such Permitted Transferees own in the aggregate Shares
representing less than 5% of the outstanding Common Stock, the SP Group
shall no longer be entitled to designate any directors for election or
removal pursuant to Section 4.2(a) or 4.3; and
(iii) From and after the date that Odyssey and Odyssey Investment
Group and their Permitted Transferees own in the aggregate Shares
representing less than 5% of the outstanding Common Stock, OIPF shall no
longer be entitled to designate any directors for election or removal
pursuant to Section 4.2(a) or 4.3.
SECTION 2 Waiver. Each of the Investor Group Stockholders,
Odyssey, BPG and BTIP hereby waive their rights under Section 3.1 and 3.2 of the
Investor Stockholders Agreement to participate on a pro rata basis in the new
issuance of the Common Stock in connection with the Transaction.
SECTION 3 Odyssey Investment Group As A Party. In consideration
of OIPF's Equity Purchase and the pending transfer by Odyssey (whether or not
effected) of all the Shares owned by it to Odyssey Investment Group, Odyssey
Investment Group shall be deemed a party to the Investor Stockholders Agreement
as of the date of execution thereof, shall be bound by the terms and conditions
thereof, and shall be entitled to the same rights as Odyssey has with respect to
the Shares now owned by it (including as an Existing Stockholder).
SECTION 4 Representations and Warranties. Each of the Company and
each Stockholder represents and warrants to the other parties as follows: (a)
such party has all requisite power, authority and legal capacity to enter into
this Agreement and perform such party's obligations hereunder; (b) if such party
is a corporation or partnership, the execution and delivery of this Agreement by
such party and the performance of such party's obligations hereunder have been
duly authorized by all necessary corporate or partnership action, as the case
may be, on the part of such party; and (c) this Agreement has been duly executed
and delivered by and (assuming this Agreement constitutes a valid and binding
agreement of the other parties) constitutes a valid and binding obligation of
such party, enforceable against such party in accordance with its terms, except
to the extent enforceability may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to or affecting creditors? rights
generally.
SECTION 5 Miscellaneous.
5.1 Continuing Effectiveness, etc. The Investor Stockholders
Agreement as hereby amended is hereby ratified and confirmed in all respects.
After the date hereof, all references in the Investor Stockholders Agreement to
"Investor Stockholders Agreement", "Agreement" or similar terms shall refer to
the Investor Stockholders Agreement as hereby amended.
5.2 Counterparts. This Amendment and Waiver may be executed in
any number of counterparts and by the different parties on separate
counterparts, and each such counterpart shall be deemed to be an original but
all such counterparts shall together constitute one and the same Amendment and
Waiver.
5.3 Governing Law. This Amendment and Waiver shall be governed by
and construed in accordance with the laws of the State of Delaware (without
reference to the conflicts of laws provisions thereof).
5.4 Successors and Assigns. This Amendment and Waiver shall be
binding upon the Company and the Stockholders and their respective permitted
successors and assigns, and shall inure to the benefit of the Company and the
Stockholders and their respective permitted successors and assigns.
5.5 Further Assurances. Each of parties hereto will, promptly
upon the request of the other party hereto, from time to time execute,
acknowledge and deliver, and file and record, all such agreements, documents,
instruments and notices, and take all such action, as the other party deems
necessary or advisable to carry out the intent and purposes of this Amendment
and Waiver and the Investor Stockholders Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective authorized officers as of the day and
year first above written.
SCOTSMAN HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name:
Title:
CYPRESS MERCHANT BANKING
PARTNERS L.P.
By: Cypress Associates L.P., its
general partner
By: Cypress Merchant Banking Partners
L.L.C., its general partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name:
Title:
CYPRESS OFFSHORE PARTNERS L.P.
By: Cypress Associates L.P., its
general partner
By: Cypress Merchant Banking Partners
L.L.C., its general partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name:
Title:
SCOTSMAN PARTNERS, L.P.
By: Group 31, Inc., its general partner
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name:
Title:
ODYSSEY PARTNERS, L.P.
By: /s/ Xxxx Xxxx
---------------------------------
Name:
Title:
/s/ Xxxxx X. Xxxxxxx
---------------------------------
XXXXX X. XXXXXXX
BT INVESTMENT PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Name:
Title:
ODYSSEY INVESTMENT PARTNERS
FUND, LP
By: /s/ Xxxxx Xxxxx
---------------------------------
Name:
Title:
ODYSSEY COINVESTORS, LLC
By: /s/ Xxxxx Xxxxx
---------------------------------
Name:
Title:
