AMENDMENT TO SHAREHOLDERS AGREEMENT
THIS AMENDMENT (the "Amendment") TO THAT CERTAIN
SHAREHOLDERS AGREEMENT, dated as of October 16, 1997 (the
"Shareholders Agreement"), is made and entered into as of
December 9, 1997 by Xxxxxx Acquisition, LLC, a Delaware limited
liability company ("Parent"), Xxxxxx Acquisition, Inc., a New
York corporation and a wholly-owned subsidiary of Parent
("Acquisition"), and the parties listed on Schedule A (the
"Xxxxxxxx Parties"), the parties listed on Schedule B (the
"Benach Parties") and the parties listed on Schedule C (the
"Aboodi Parties") (each party on Schedules A, B and C shall be
referred to individually as a "Shareholder" and collectively as
the "Shareholders", and each of the Xxxxxxxx Parties, as a group,
the Benach Parties, as a group, and the Aboodi Parties, as a
group, shall be referred to as a "Group of Shareholders" or
Shareholder Group").
WITNESSETH:
WHEREAS, on October 16, 1997, Acquisition and Xxxxxxxx
Corporation, a New York corporation (the "Company"), entered into
an Agreement and Plan of Merger (as such agreement may hereafter
be amended, restated or renewed from time to time, the "Merger
Agreement"), pursuant to which Acquisition agreed to commence a
cash tender offer to purchase any and all outstanding shares of
common stock, par value $1.00 per share, of the Company (the
"Company Common Stock"), including all of the shares listed on
the schedules hereto (the "Shares"), at a price per share of
$12.25 (the "Offer Price"). Capitalized terms used and not
defined herein shall have the respective meanings ascribed to
them in the Merger Agreement; and
WHEREAS, on October 16, 1997, Parent, Acquisition and the
Shareholders entered into the Shareholders Agreement whereby the
Shareholders agreed to tender the Shares Beneficially Owned by
the Shareholders (as such terms are defined in the Shareholders
Agreement); and
WHEREAS, the Shareholders have tendered (and not withdrawn)
the Shares; and
WHEREAS, in order to benefit the Company's public
shareholders and facilitate consummation of the Offer, the Merger
and the financing thereof, the Shareholders desire to amend the
Shareholders Agreement to provide that the Shareholders will
provide to Acquisition certain funds for the consummation of the
transactions contemplated by the Merger Agreement; and
WHEREAS, the Shareholders desire to provide such funds by
offsetting the amount of such funds against the Offer Price the
Shareholders would otherwise receive upon consummation of the
Offer.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Section 2 of the Shareholders Agreement is hereby
amended by adding the following subsections:
(c) Funding by Shareholders. The Shareholders hereby
agree to pay to Acquisition $2,641,413.98 or $0.8127 per share of
Common Stock of the Company heretofore tendered by the
Shareholders, in accordance with the provisions set forth in
Section 2(d) below.
(d) Offset against Offer Price. The payment referred
to in Section 2(c) above shall be made by an offset, on a per
share basis, against the Offer Price the Shareholders would have
received upon consummation of the Offer for the Shares tendered
by them. The Shareholders hereby authorize Acquisition to
instruct ChaseMellon Shareholder Services, as the Depositary,
that the price per share disbursed to each Shareholder as payment
for the shares tendered by such Shareholder shall equal the Offer
Price minus $0.8127. A copy of such instruction letter is
attached hereto as Exhibit A.
2. As amended hereby, the Shareholders Agreement shall
remain in full force and effect.
3. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given
(and shall be deemed to have been duly received if so given) by
hand delivery, or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any courier service,
such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective
parties at the following addresses or the addresses set forth on
the signature pages hereto:
If to Parent or Acquisition: Xxxxxx Acquisition, LLC
and
Xxxxxx Acquisition, Inc.
c/o Xxxxxxxx Xxxxx Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxx
copies to: Squadron, Ellenoff, Plesent &
Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxx, Esq.
If to the Company: Xxxxxxxx Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
copies to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
If to Shareholder: At the addresses set forth on
the signature pages
copies to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
and Xxxxx X. Xxxx, Esq.
Xxxxxxxxx Properties Corp.
1271 Avenue of the Americas
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as the person to whom notice is given
may have previously furnished to the others in writing in the
manner set forth above.
4. This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
5. Each party hereby irrevocably submits to the exclusive
jurisdiction of the Supreme Court in the State of New York in any
action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding
shall be brought only in such court (and waives any objection
based on forum non conveniens or any other objection to venue
therein); provided, however, that such consent to jurisdiction is
solely for the purpose referred to in this Section 5 and shall
not be deemed to be a general submission to the jurisdiction of
said Court or in the State of New York other than for such
purposes. Each party hereto hereby waives any right to a trial
by jury in connection with any such action, suit or proceeding.
6. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement. This
Agreement shall not be effective as to any party hereto until
such time as this Agreement or a counterpart thereof has been
executed and delivered by each party hereto.
IN WITNESS WHEREOF, the parties have caused this Amendment
to be duly executed on this 9th day of December, 1997.
ON BEHALF OF EACH OF THE
XXXXXXXX PARTIES
c/x Xxxxxxxx Properties Corp.
1271 Avenue of the Americas
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
/s/ XXXX XXXXXXXX
By:--------------------------
Xxxx Xxxxxxxx
/s/ XXXXXXX XXXXXXXX
By:--------------------------
Xxxxxxx Xxxxxxxx
ON BEHALF OF EACH OF THE
BENACH PARTIES
c/o Xxxxx Xxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
/s/ XXXXX XXXXXX
By:--------------------------
Xxxxx Xxxxxx
OEA PARTNERS
c/o Alpine Capital Group
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxx
/s/ XXXX XXXXXX
By:--------------------------
Name: Xxxx Xxxxxx
Title: General Partner
KADIMA PARTNERS
c/o Alpine Capital Group
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxx
/s/ XXXX XXXXXX
By:--------------------------
Name: Xxxx Xxxxxx
Title: General Partner
/s/ XXXX XXXXXX
By:--------------------------
XXXX XXXXXX
Alpine Capital Group
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX ACQUISITION, LLC
/s/ XXXXXXXX X. XXXXXXX
By:--------------------------
Name: Xxxxxxxx X.Xxxxxxx
Title: President
XXXXXX ACQUISITION, INC.
/s/ XXXXXXXX X. XXXXXXX
By:--------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: President
