Exhibit 10.20
AMENDMENTS TO THE 1998 INVESTMENT AGREEMENT
(i) Paragraph (a) of the penultimate recital to the 1998 Investment
Agreement shall be restated in its entirety as follows as follows:
(a) Purchaser wishes to purchase from the Company,
and the Company wishes to sell to Purchaser, shares of Common
Stock and warrants having the terms and conditions set forth
in Exhibit 1 (as such warrants are amended from time to time,
whether pursuant to the Investment Agreement, dated as of
March 30, 1999, between the Company and Purchaser (the "1999
Investment Agreement") or otherwise, the "Special Warrants")
entitling the holder thereof to purchase shares of Common
Stock together representing 24.9% of the shares of Common
Stock as of the Closing Date (as herein defined) that would be
outstanding after giving effect to the issuance of such shares
(and assuming the conversion into Common Stock of all of the
Company's issued and outstanding 5 1/2% Convertible
Subordinated Notes Due 2001 issued pursuant to an Indenture,
dated as of February 7, 1996, between the Company and State
Street Bank and Trust Company (the "2001 Notes") that are
outstanding on the Closing Date, and after giving effect to
the issuance of any Contingent Stock (as defined herein)), and
warrants entitling the holder thereof to purchase one share of
Common Stock for each share and Special Warrant so purchased
on the terms and subject to the conditions set forth in
Exhibit 2 (as such warrants are amended from time to time,
whether pursuant to the 1999 Investment Agreement or
otherwise, the "Warrants"), and
(ii) Paragraph (b) of Section 4.01 of the 1998 Investment Agreement
shall be restated in its entirety as follows:
(b) Purchaser shall be entitled to nominate three directors
for election, PROVIDED:
(i) if the total number of shares of Common Stock
represented by the Shares, the Special Warrants and the
Warrants ("Purchaser's Total Securities") declines by more
than 33_% but less than 66_% from Purchaser's Total Securities
at Closing by reason of sales or other dispositions of Common
Stock, Warrants or Special Warrants by Purchaser, Purchaser
shall have the right to nominate two directors;
(ii) if Purchaser's Total Securities declines by 66_%
or more from Purchaser's Total Securities at Closing, but
Purchaser's Percentage Interest remains at least 5% of the
outstanding Voting Securities, by reason of
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sales or other dispositions of Common Stock, Warrants or
Special Warrants by Purchaser, Purchaser shall have the right
to nominate one director;
(iii) for the purpose of calculating Purchaser's
Total Securities as of any time after the closing under the
1999 Investment Agreement (but not for the purpose of
calculating Purchaser's Total Securities at Closing), each
Preferred Share owned by Purchaser shall be treated as if it
were 100 Shares.
(iv) in the event that the size of the Board of
Directors shall be increased, Purchaser shall have the right
to at least proportionate representation on the Board
following such increase based on the composition of the Board
as between Investor Directors and Non-Investor Directors
immediately prior to such increase; PROVIDED that in no event
shall the Board consist of more than 12 directors; and
(v) if the chief executive officer of the Company is
not then a member of the Board of Directors or a nominee for
membership thereon, the Purchaser shall be entitled to approve
an additional nominee to the Board of Directors.
(iii) Paragraph (a) of Section 6.01 of the 1998 Investment Agreement
shall be restated in its entirety as follows:
(a) Except as permitted by Section 6.01(b) or
6.01(c), neither Purchaser nor its Affiliates will directly or
indirectly acquire any securities (including by exercise of
the Warrants or Special Warrants) or take any other action
that would cause (i) the percentage of the Total Voting Power
represented by the aggregate voting power of all Voting
Securities then held by Purchaser to equal or exceed 26.7% or
(ii) the aggregate voting power of all Equity Securities then
held by Purchaser (on an as converted basis) to equal or
exceed 50%.
(iv) Paragraph (c) of Section 6.01 of the 1998 Investment Agreement
shall be restated in its entirety as follows:
(c) This Section 6.01 shall terminate and be of no
further force or effect on the earliest to occur of (i) the
fifth anniversary of the Closing, (ii) the date on which the
percentage of the Total Voting Power represented by the
aggregate voting power of all Voting Securities then owned by
Purchaser (other than any Voting Securities acquired in
violation of this Agreement) is greater than 50%, and (iii)
the first public disclosure of a Third-Party Bid (provided,
however, that if such Third-Party Bid is
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thereafter abandoned, terminated or withdrawn, the provisions
of this Section 6.01 shall be reinstated, although any action
taken or agreement or arrangement entered into by Purchaser
after such first public disclosure and prior to such
reinstatement (or the consummation of any such action,
agreement or arrangement, whether before or, unless such
action, agreement or arrangement shall be a tender offer or
other public offer with respect to the Company, after such
reinstatement) shall not be deemed to breach this Section 6.01
as a result of such reinstatement).
(v) The first paragraph of Section 6.02 of the 1998 Investment
Agreement shall be restated in its entirety as follows:
SECTION 6.02 ADDITIONAL LIMITATIONS. (a) Except as
permitted by Section 6.02(b), during the five-year period
beginning on the date of this Agreement, Purchaser shall not,
and shall not permit its Affiliates to:
(vi) Section 6.02 of the 1998 Investment Agreement shall be amended by
adding a section (b) as follows:
(b) The limitations set forth in Section 6.02 (a)
hereof shall not apply (x) in connection with a Buyout
Transaction that is not solicited or proposed by Purchaser or
its Affiliates, (y) following the first public disclosure of a
Third-Party Bid (provided, however, that if such Third-Party
Bid is thereafter abandoned, terminated or withdrawn, the
provisions of Section 6.02 (a) hereof shall be reinstated,
although any action taken or agreement or arrangement entered
into by Purchaser after such first public disclosure and prior
to such reinstatement (or the consummation of any such action,
agreement or arrangement, whether before or, unless such
action, agreement or arrangement shall be a tender offer or
other public offer with respect to the Company, after such
reinstatement) shall not be deemed to breach the provisions of
Section 6.02 (a) hereof as a result of such reinstatement), or
(z) as specifically approved by a majority of the Non-Investor
Directors
(vii) Paragraphs (c) and (d) of Section 7.01 of the 1998 Investment
Agreement shall be restated in their entirety as follows:
(c) The provisions of clauses (a) and (b) of this
Article VII shall terminate and be of no further force or
effect on the earliest to occur of (i) the fifth anniversary
of the Closing, (ii) the date on which the percentage of the
Total Voting Power represented by the aggregate voting power
of all Voting Securities then owned by Purchaser (other than
any Voting Securities acquired in violation of this Agreement)
is greater than 50%, and (iii) the first public disclosure of
a Third-Party Bid (provided,
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however, that if such Third-Party Bid is thereafter abandoned,
terminated or withdrawn, the provisions of clauses (a) and (b)
of this Article VII shall be reinstated, although any action
taken or agreement or arrangement entered into by Purchaser
after such first public disclosure and prior to such
reinstatement (or the consummation of any such action,
agreement or arrangement, whether before or, unless such
action, agreement or arrangement shall be a tender offer or
other public offer with respect to the Company, after such
reinstatement) shall not be deemed to breach the provisions of
clauses (a) and (b) of this Article VII as a result of such
reinstatement).
(d) Prior to the seventh anniversary of the Closing,
the Purchaser will not, directly or otherwise dispose of
Shares representing 15% or more of the then outstanding Common
Stock, to any Person or group (within the meaning of Section
13(d)(3) of the Exchange Act) without first offering the
Company the right to make an offer to purchase the Shares
proposed to be so sold, transferred or otherwise disposed of.
The provisions of the previous sentence shall terminate and be
of no effect on the earlier to occur of (i) the date on which
the percentage of the Total Voting Power represented by the
aggregate voting power of all Voting Securities then owned by
Purchaser (other than any Voting Securities acquired in
violation of this Agreement) is greater than 50%, and (ii) the
first public disclosure of a Third Party Bid (provided,
however, that if such Third-Party Bid is thereafter abandoned,
terminated or withdrawn, the provisions of this Section 7.01
(d) shall be reinstated, although any action taken or
agreement or arrangement entered into by Purchaser after such
first public disclosure and prior to such reinstatement (or
the consummation of any such action, agreement or arrangement,
whether before or, unless such action, agreement or
arrangement shall be a tender offer or other public offer with
respect to the Company, after such reinstatement) shall not be
deemed to breach this Section 7.01 (d) as a result of such
reinstatement).
(viii) Section 8.10 of the 1998 Investment Agreement shall be restated
in its entirety as follows:
Section 8.10 TAX STANDSTILL. Except as permitted by
Section 6.01(b) or 6.01(c) and except for acquisitions of
Securities from the Company, during the period ending two
years after the date of the Distributions, (i) Purchaser shall
not acquire any Securities or take any other action that would
cause Purchaser's Percentage Interest to equal or exceed 50%,
(ii) none of Purchaser, the Fund or CD&R shall act in concert
with any other Person to acquire any Securities if aggregating
such
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acquisition with the Purchaser's holdings would cause the
Purchaser's Percentage Interest to equal or exceed 50%, and
(iii) none of Purchaser, the Fund or CD&R shall solicit the
acquisition of any Securities, PROVIDED that the provision by
the Fund to its limited partners of customary reports and
information, and customary communication with such limited
partners on behalf of the Fund, with respect to the Fund's
investment in the Company that, in either case, do not
recommend any such acquisition, shall not be treated as a
solicitation by the Purchaser within the meaning of this
clause (iii). The limitations contained in this Section 8.10
shall terminate upon the first public disclosure of a
Third-Party Bid (provided, however, that if such Third-Party
Bid is thereafter abandoned, terminated or withdrawn, the
provisions of this Section 8.10 shall be reinstated, although
any action taken or agreement or arrangement entered into by
Purchaser after such first public disclosure and prior to such
reinstatement (or the consummation of any such action,
agreement or arrangement, whether before or, unless such
action, agreement or arrangement shall be a tender offer or
other public offer with respect to the Company, after such
reinstatement) shall not be deemed to breach this Section 8.10
as a result of such reinstatement).
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(ix) Section 12.02 of the 1998 Investment Agreement shall be amended by
inserting, immediately following the definition of "Pre-Distribution
Transactions", a new definition as follows:
"PREFERRED SHARES" means the shares of Series A
Non-Voting Participating Convertible Preferred Stock of the
Company, par value $.001 per share, purchased by Purchaser
pursuant to an Investment Agreement, dated as of March 30,
1999, between the Company and Purchaser.
(x) Section 12.02 of the 1998 Investment Agreement shall be amended by
restating the definition of "Pro Rata Share", as follows:
"PRO RATA SHARE" means the fraction of an entire
issuance of New Securities, the numerator of which shall be
the sum of (a) the number of shares of Common Stock owned or
receivable upon exercise of the Warrants and the Special
Warrants by Purchaser and its Affiliates (other than the
Company and its Subsidiaries) immediately prior to such
issuance of such New Securities and (b) the number of shares
of Common Stock into which the Preferred Shares owned by
Purchaser and its Affiliates are convertible, and the
denominator of which shall be the sum of (x) the aggregate
number of shares of Common Stock outstanding immediately prior
to such issuance of such New Securities and receivable upon
exercise of the Warrants and the Special Warrants and (y) the
number of shares of Common Stock into which such Preferred
Shares are convertible.
(xi) Section 12.02 of the 1998 Investment Agreement shall be amended by
inserting, immediately following the definition of "Termination Fee", a new
definition as follows:
"THIRD-PARTY BID" means an unsolicited bona fide
tender offer or other public offer by a Person other than
Purchaser, an Affiliate thereof or the Company or any of its
Subsidiaries (a "THIRD PARTY") to purchase a number of shares
of Common Stock which, together with the shares of Common
Stock Beneficially Owned by such Third Party, would result in
the Third Party being the Beneficial Owner of 25% or more of
the shares of Common Stock outstanding.
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