EXHIBIT 4.5
AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT
AMENDMENT dated as of May 5, 2000 among DLJ Investment Partners, L.P., a
Delaware limited partnership, DLJ Investment Partners II, L.P., a Delaware
limited partnership, DLJ Investment Funding II, Inc., a Delaware corporation,
and DLJ ESC II, L.P., a Delaware limited partnership (each a "DLJIP Entity" and
collectively, the "DLJIP Entities"), the parties appearing on the signature
page hereto under the caption "Existing Stockholders" and Xxxxxxx Holdings
(N.A.) Inc., a Delaware corporation (the "Company").
WHEREAS, pursuant to the Stock Subscription Agreement dated as of May 5,
2000 (the "Subscription Agreement") among the Company, the DLJIP Entities and
the Selling Stockholders named therein, the DLJIP Entities are acquiring from
the Selling Stockholders (i) shares of Class A Common Stock, par value $.01 per
share, of the Company (the "Class A Common Stock"), (ii) shares of Class B
Convertible Non-Voting Common Stock, par value $.01 per share, of the Company
(the "Class B Common Stock") and (iii) shares of the Company's 16.0% Senior
Exchangeable Preferred Stock, par value $.01 per share (the "Preferred Stock"
and collectively with the Class A Common Stock and the Class B Common Stock,
the "Purchased Securities");
WHEREAS, the Company has previously entered into a Stockholders Agreement
dated as of August 16, 1999 (the "Stockholders Agreement") among the DLJ
Entities (as defined therein), Squam Lake Investors IV, L.P., the Company and
other parties thereto as of the date hereof;
WHEREAS, the Stockholders Agreement may be amended or otherwise modified
by an instrument in writing executed by the Company with the approval of the
board of directors of the Company and Stockholders holding at least 75% of the
outstanding Shares (as defined in the Stockholders Agreement); and
WHEREAS, in connection with the acquisition of the Purchased Securities,
the Company (with the approval of the board of directors of the Company) and
Stockholders holding at least 75% of the outstanding Shares desire to amend or
otherwise modify the Stockholders Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein and the Subscription Agreement, the parties hereto amend and otherwise
modify the Stockholders Agreement as follows:
SECTION 1. Parties to Stockholders Agreement. From the date of this
Amendment, the DLJIP Entities shall be deemed to be parties to the Stockholders
Agreement.
SECTION 2. Definitions; Interpretation. (a) Capitalized terms used but not
defined in this Amendment shall have the meanings set forth in the Stockholders
Agreement. Each reference to "hereof", "hereunder", "herein" or "hereby" and
each other similar reference and each references to "this Agreement" and each
other similar reference contained in the Stockholders Agreement shall from and
after the date of this Amendment refer to the Stockholders Agreement as amended
hereby.
(b) Section 1.01 of the Stockholders Agreement is amended by the addition
of the following term:
"DLJIP Entity" means each of DLJ Investment Partners, L.P., a Delaware
limited partnership, DLJ Investment Partners II, L.P., a Delaware limited
partnership, DLJ Investment Funding II, Inc., a Delaware corporation, and DLJ
ESC II, L.P., a Delaware limited partnership (collectively, the "DLJIP
Entities").
(c) Section 1.01 of the Stockholders Agreement is amended by the deletion
of the word "or" before "(E)" and the replacement thereof with a comma and by
the addition of "or (F) any DLJIP Entity" at the end of subsection (i) of the
definition of "Permitted Transferee."
SECTION 3. Transferability. Section 3.01(a) of the Stockholders Agreement
is amended by the addition of the following sentence at the end thereof:
"Subject to the Securities Act, Company Securities may be freely
transferred by any DLJIP Entity."
SECTION 4. Applicability of Section 4.01. Section 4.01 of the Stockholders
Agreement is amended by the addition of the following sentence at the end
thereof:
"(e) For the avoidance of any doubt, the provisions of this Section 4.01
shall not apply to the transfer of Company Securities by any DLJIP
Entity."
SECTION 5. Assignability. Section 6.04 of the Stockholders Agreement is
amended by the addition of the following after the first sentence thereof:
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"In addition, any DLJIP Entity may, in connection with a transfer of
Company Securities other than pursuant to a Public Offering, assign its
rights (in whole or in part) under this Agreement to another Person or
Persons, provided that such Person or Persons shall execute and deliver to
the Company an agreement to be bound by the terms of this Agreement
applicable to DLJIP Entities."
SECTION 6. Amendment. Section 6.05(a) of the Stockholders Agreement is
amended by the addition of the following after the last sentence thereof:
"In addition, any amendment or modification of any provision of this
Agreement that would adversely affect any DLJIP Entity may be effected
only with the consent of such DLJIP Entity."
SECTION 7. Notices. All notices, requests and other communications to the
DLJIP Entities shall be given to:
DLJ Investment Partners, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Fax: 000-000-0000
SECTION 8. Miscellaneous. (a) This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original and all of which
together shall be deemed to be one and the same instrument.
(b) No provision of this Amendment shall confer upon any Person other than
the parties hereto any rights or remedies hereunder.
(c) This Amendment shall be governed by and construed in accordance with
the law of the State of Delaware, without regard to the conflicts of law rules
of such state.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective signatories as of the day and year first
above written.
XXXXXXX HOLDINGS (N.A.), INC.
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title:
DLJ INVESTMENT PARTNERS, L.P.
By: DLJ INVESTMENT PARTNERS,
INC., Managing General Partner
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxx
Title:
DLJ INVESTMENT PARTNERS II, L.P.
By: DLJ INVESTMENT PARTNERS, II
INC., Managing General Partner
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxx
Title:
DLJ ESC II L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, General Partner
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxx
Title:
DLJ INVESTMENT FUNDING II, INC.
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
Existing Stockholders:
DLJ MERCHANT BANKING
PARTNERS II, L.P.
By: DLJ MERCHANT BANKING II,
INC., Managing General Partner
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ MERCHANT BANKING
PARTNERS II-A, L.P.
By: DLJ MERCHANT BANKING II,
INC., Managing General Partner
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ MERCHANT BANKING II,
INC., Advisory General Partner
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ DIVERSIFIED PARTNERS,
INC., Managing General Partner
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ DIVERSIFIED PARTNERS,
INC., Managing General Partner
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJMB FUNDING II, INC.
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ MERCHANT BANKING II,
INC., Managing General Partner
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ MERCHANT BANKING II,
INC., Managing General Partner
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ EAB PARTNERS, L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, General Partner
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ ESC II, L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ FIRST ESC, L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Vice President
SQUAM LAKE INVESTORS IV, L.P.
By: GPI, INC., as Managing General
Partner
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
