EXHIBIT 4.9(B)
OMNIBUS AMENDMENT TO REGISTRATION RIGHTS
AND STOCKHOLDERS' AGREEMENTS
This Omnibus Amendment to Registration Rights and Stockholders' Agreements
(the 'Omnibus Amendment') is made and entered into as of October , 1997, by
and among Finlay Enterprises, Inc., a Delaware corporation (the 'Company') and
each of the parties who have accepted and agreed to this First Amendment by
signing a signature page of this Omnibus Amendment (the 'Amending
Stockholders').
This Omnibus Amendment is an amendment to the Registration Rights Agreement
by and among the Company, the Amending Stockholders and the other parties
thereto dated as of May 26, 1993 (the 'Original Registration Rights Agreement')
and the Amended and Restated Stockholders' Agreement by and among the Company,
the Amending Stockholders and the other parties thereto dated as of March 6,
1995 (the 'Restated Stockholders' Agreement'). For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Amending Stockholders hereby agree as follows:
1. Amendment to Original Registration Rights Agreement. Upon the sale
or other disposition by Equity-Linked Investors, L.P. of all of its shares
of Common Stock, par value $.01 per share, of the Company, the Original
Registration Rights Agreement shall automatically be amended as follows:
'(e) Notwithstanding any other provision of this Agreement, for
purposes of any Demand Registration under Sections 2, 3 or 4 above and
any Piggyback Registration under this Section 5, until the Catch-Up
Point the Xxx Holders may at their option sell Registrable Securities
held by the Xxx Holders in place of Registrable Securities held by the
XXX Holders (but only to the extent required to reach the Catch-Up
Point), regardless of whether the XXX Holders desire to sell any
Registrable Securities in connection with such Registration. The
Catch-Up Point shall occur at such time as the Xxx Holders have sold a
percentage of the Registrable Securities of the Xxx Holders (based on
the aggregate number of Registrable Securities held by the Xxx Holders
immediately prior to the effectiveness of the Registration Statement, as
defined below) equal to the percentage of the Registrable Securities
sold by the XXX Holders pursuant to the Company's Registration Statement
on Form S-1 dated September 23, 1997, Registration No. 333-34949 (the
'Registration Statement').'
2. Amendment to Restated Stockholders' Agreement. Pursuant to Section
2.3(c) of the Restated Stockholders' Agreement, upon the sale or other
disposition by the Applicable XXX Holders of more than fifty percent (50%)
of the Shares held by them on March 6, 1995, Section 2.3 of the Restated
Stockholder's Agreement shall automatically be amended and restated in its
entirety as follows:
'2.3 Corporate Governance. Until the tenth anniversary of the date
hereof, the Company and Stockholders shall take all action, including
but not limited to (i) the Stockholders instructing their director
designees provided herein to take such actions and (ii) the Stockholders
voting, or executing written consents with respect to, their Shares, so
that:
(a) Election of Directors. Subject to Sections 2.3(c) and
2.3(d) below, the Company's and the Operating Company's Boards of
Directors shall be fixed at eight (8) members, of which one member
shall be designated by Xxxxxx X. Xxxxxx (which member shall be Xx.
Xxxxxx himself) (the 'Xxxxxx Nominee'), two members (one of which
members shall be either Xx. Xxxxxxxxx himself, or if Xx. Xxxxxxxxx is
no longer an employee of the Company, a management employee of the
Company) shall be designated by Xxxxx X. Xxxxxxxxx (the 'Cornstein
Nominees'), one member shall be designated by the Applicable XXX
Holders (the 'XXX Nominees'), and two members shall be designated by
the Applicable Xxx Holders (the 'Xxx Nominees'). The directors shall
be divided into classes. The initial term of the Xxxxx Nominee and
one Xxx Nominee shall expire in 1999; the initial term of the Xxxxxx
Nominee and the Cornstein Nominees shall
expire in 2000; and the initial term of the other Xxx Nominee shall
expire in 2001. At the option of the Applicable Xxx Holders and the
Applicable XXX Holders, respectively, the Xxx Nominee(s) or the XXX
Nominee, respectively, shall be reduced by one or by two, and such
Xxx Nominee(s) or XXX Nominee, as the case may be, shall be removed
from the Board of Directors and, during such time as the Applicable
Xxx Holders and the Applicable XXX Holders, respectively, would
otherwise have had the right to designate a Director hereunder, a
representative of the Applicable Xxx Holders or the Applicable XXX
Holders, as the case may be, shall continue to have the right to
attend meetings of the Board of Directors of the Company and the
Operating Company as an observer without a vote or other rights as a
director (except the right to receive sufficient notice to enable
such attendance and the right to receive all other communications,
information and materials furnished, from time to time, to Directors
of the Company and the Operating Company and the right to receive
reimbursement for travel expenses to the same extent as Directors of
the Company and the Operating Company). In addition to any other
rights under this Agreement, (x) any transferee of any of the Xxx
Holders, the XXX Holders and Xxxxx X. Xxxxxxxxx, who is an
Institutional Investor and who holds pursuant to one or more
Transfers Shares constituting at least ten percent (10%) of the
Shares then outstanding and (y) a representative of the Cornstein
Beneficiaries, so long as they hold, collectively, at least five
percent (5%) of the issued and outstanding shares of Common Stock of
the Company (and have not designated a director pursuant to this
Section 2.3(a)), shall have the right to attend meetings of the
Boards of Directors of the Company and its Subsidiaries, and, in the
case of the Cornstein Beneficiaries, the Executive Committee, as an
observer without a vote or other rights as a director (except the
right to receive sufficient notice to enable such attendance and the
right to receive all other communications, information and materials
furnished, from time to time, to Directors of the Company and its
Subsidiaries, and the Executive Committee, as the case may be, and
the right to receive reimbursement for travel expenses to the same
extent as Directors of the Company and its Subsidiaries).
(b) Designation of Director Nominees. One of the Xxx Nominees
shall be designated by the vote or consent of a majority of the then
outstanding Shares owned by Xxx Equity Partners and its transferees
who are Applicable Xxx Holders and one of the Xxx Nominees shall be
designated by the vote or consent of a majority of the then
outstanding Shares owned by the Applicable Xxx Holders other than Xxx
Equity Partners. The Cornstein Nominees shall be designated by the
vote or consent of a majority of the then outstanding Shares owned by
Xxxxx X. Xxxxxxxxx and his Permitted Transferees. The XXX Nominee
shall be designated by the vote or consent of a majority of the then
outstanding Shares owned by the Applicable XXX Holders. Any group of
Stockholders entitled to designate directors hereunder shall also be
entitled to require that the director designated by that group
pursuant to this Section 2.3 be removed or replaced by another
designee of such group.
(c) Termination of Right to Elect Directors. The number of
directors which Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxxx, the Applicable
XXX Holders, and the Applicable Xxx Holders shall have the right to
designate to the Board of Directors of the Company and its
Subsidiaries shall be reduced as follows: Xx. Xxxxxx'x right to
designate a director shall terminate on the date that Xx. Xxxxxx is
no longer an employee of the Company. Xx. Xxxxxxxxx'x right to
designate one director shall terminate when Xx. Xxxxxxxxx and his
Permitted Transferees own less than fifty percent (50%) of the Shares
held by him on the date hereof, and his right to designate the other
director shall terminate when he owns less than five percent (5%) of
the Common Stock of the Company then outstanding. The Applicable Xxx
Holders' right to designate one director shall terminate when the
Applicable Xxx Holders collectively own less than fifty percent (50%)
of the Shares held by them on the date hereof, and their right to
designate the other director (which shall be the director designated
by Xxx Equity Partners in accordance with Section 2.3(b)) shall
2
terminate when the Applicable Xxx Holders collectively own less than
five percent (5%) of the Common Stock of the Company then
outstanding. The Applicable XXX Holders' right to designate a
director shall terminate when the Applicable XXX Holders collectively
own less than five percent (5%) of the Common Stock of the Company
then outstanding.
(d) Executive Committee. The Board of Directors of the Company
and the Operating Company shall have an Executive Committee
empowered, to the fullest extent possible by law, to take all actions
which can be taken by the full Board of Directors of the Company and
the Operating Company. Each such Executive Committee shall consist of
five (5) directors, one of which will be designated by Xxxxxx X. Xxx
(so long as the Applicable Xxx Holders have a right to designate a
director pursuant to Section 2.3(a) above), one of which will be
designated by the Applicable XXX Holders, (so long as the Applicable
XXX Holders have a right to designate one director pursuant to
Section 2.3(a) above), two of which (including one management
employee of the Company) will be designated by Xxxxx X. Xxxxxxxxx, so
long as Xxxxx X. Xxxxxxxxx has the right to designate two directors
pursuant to Section 2.3(a) above, and thereafter only one of which
will be designated by Xxxxx X. Xxxxxxxxx (so long as Xxxxx X.
Xxxxxxxxx has the right to designate one director pursuant to Section
2.3(a) above), and one of which will be an independent director
designated by the Board of Directors of the Company. If any
Stockholder or group of Stockholders loses its right to designate a
member of the Executive Committee in accordance with the foregoing
provisions of this Section 2.3(d), such member shall be designated by
the Board of Directors of the Company. Notwithstanding any other
provision of this Agreement, if all of the members of the Executive
Committee vote to remove a director, each Stockholder agrees to vote
his or its Shares (whether at a meeting or by written consent) to
effectuate such removal.
(e) Restrictions on Other Agreements. No Stockholder shall
grant any proxy or enter into or agree to be bound by any voting
trust with respect to the Shares, nor shall any Stockholder enter
into any stockholders agreements or arrangements of any kind with any
person with respect to the Shares on terms which conflict with the
provisions of this Agreement (whether or not such agreements and
arrangements are with other Stockholders or holders of Shares that
are not parties to this Agreement), including but not limited to,
agreements or arrangements with respect to the acquisition,
disposition or voting of Shares inconsistent herewith.
(f) Stockholder Action. Each Stockholder agrees that, in such
Stockholder's capacity as a stockholder of the Company, such
Stockholder will vote, or grant proxies relating to such shares to
vote, all of such Stockholder's shares of Common Stock in favor of
any transaction pursuant to Section 2.2 hereof (other than a
transaction with an Affiliate) if, and to the extent that, approval
of the Company's stockholders is required in order to effect such
transaction.'
(g) Upon the sale or other disposition by Equity-Linked
Investors, L.P. ('XXX-I') of all of its Shares, it shall no longer be
deemed a Stockholder under the Restated Stockholder's Agreement and
the terms and provisions of the Restated Stockholder's Agreement
shall automatically terminate with respect to, and no longer be
binding on or enforceable against, XXX-I.
3. Ratification. Except as explicitly amended hereby, the terms of
the Original Registration Rights Agreement and Restated Stockholders'
Agreement are hereby ratified and confirmed.
4. Counterparts. This Omnibus Agreement may be executed in two or
more counterparts each of which shall be deemed an original but all of
which together shall constitute one and the same instrument, and all
signatures need not appear on any one counterpart.
3
5. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (REGARDLESS OF THE LAWS THAT
MIGHT OTHERWISE GOVERN UNDER APPLICABLE NEW YORK PRINCIPLES OF CONFLICTS OF
LAWS).
[Remainder of Page Intentionally Left Blank]
4
IN WITNESS WHEREOF, the parties have executed this Omnibus Amendment under
seal as of the date written above.
FINLAY ENTERPRISES, INC. EQUITY-LINKED INVESTORS-II
By: By: Xxxxx X. Xxxxx Associates-II
Name: General Partner
Title:
By:
Name:
Title
THE XXX REPRESENTATIVE:
Xxxxxx X. Xxxxx, Xx., individually and as Xxx Xxxxx X. Xxxxxxxxx
Representative for Xxxxxx X. Xxx Equity Partners,
L.P., 1989 Xxxxxx X. Xxx Nominee Trust, Xxxx X.
Childs, Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx, C. Xxxxxx X. Xxxxxx
Xxxxxx Xxxx, Xxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx,
Xxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxx,
Xxxxxxx Xxxxxx, SGS Family Limited partnership, Xxxxxx X. Xxxxxxx
Xxxxxxx X. XxXxxx, Xxxxxx X. Xxxxxxx, Xxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx Xxxxxx, Xxxx X.
Xxxxxxxx, Xxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxx X. Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx X. Xxxxxx, Xxxxxxxx X. Xxxxxxxx and
Xxxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
EQUITY-LINKED INVESTORS, L.P.
By: Xxxxx X. Xxxxx Associates,
General Partner
By:
Name:
Title:
5
