AMENDMENT NO. 1 TO
AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
by and among
THE PANTRY, INC.,
FS EQUITY PARTNERS III, L.P.,
FS EQUITY PARTNERS IV, L.P.,
FS EQUITY PARTNERS INTERNATIONAL, L.P.,
CHASE MANHATTAN CAPITAL, L.P.,
CB CAPITAL INVESTORS, L.P.,
BASEBALL PARTNERS
and
PETER J. SODINI
June 1, 1999
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
(this "Amendment") is made and entered into as of June 1, 1999 by and among The
Pantry, Inc., a Delaware corporation (the "Company"), FS Equity Partners III,
L.P., a Delaware limited partnership ("FSEP III"), FS Equity Partners IV, L.P.,
a Delaware limited partnership ("FSEP IV"), FS Equity Partners International,
L.P., a Delaware limited partnership ("FSEP International"), Chase Manhattan
Capital, L.P., a Delaware limited partnership as successor-in-interest to Chase
Manhattan Capital Corporation, a Delaware corporation ("CMC"), CB Capital
Investors, L.P., a Delaware limited partnership ("CBC"), Baseball Partners, a
New York general partnership ("BP"), and Peter J. Sodini, an individual
("Sodini").
RECITALS
A. The Company, FSEP III, FSEP International, CMC, CBC, BP and
Sodini entered into an Amended and Restated Stockholders' Agreement dated as of
July 2, 1998 (the "Stockholders' Agreement"); and
B. The Parties wish to amend the Stockholders' Agreement as more
fully set forth below.
A M E N D M E N T
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Subparagraph (a) of Section 7, Regulatory Compliance Cooperation, is
hereby deleted in its entirety and replaced with the following:
(a) In the event that an SBIC determines that it has a
Regulatory Problem (as defined below), the Company agrees to use
commercially reasonable efforts to take all such actions as are
reasonably requested by such SBIC in order (i) to effectuate and
facilitate any transfer by such SBIC of any Securities (as defined
below) of the Company then held by such SBIC to any Person
designated by such SBIC and approved by the FS Entities (with such
approval not to be unreasonably withheld), (ii) to continue and
preserve the voting interests with respect to the Company arising
out of such SBIC's ownership of voting Securities before the
transfers referred to above (including entering into such additional
agreements as are requested by such SBIC to permit any Person(s)
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designated by such SBIC and approved by the FS Entities (with such
approval not to be unreasonably withheld) to exercise any voting
power which is relinquished by such SBIC upon any exchange of voting
Securities for nonvoting Securities of the Company) and (iii)
entering into such additional agreements and taking such additional
actions, in each case as are reasonably requested by such SBIC in
order to effectuate the intent of the foregoing.
If an SBIC elects to transfer Securities of the Company
to a Regulated Holder (as defined below) in order to avoid a
Regulatory Problem, the Company shall enter into such agreements
with such Regulated Holder as it may reasonably request in order to
assist such Regulated Holder in complying with applicable laws,
rules and regulations to which it is subject. Such agreements may
include restrictions on the redemption, repurchase or retirement of
Securities of the Company that would result or be reasonably
expected to result in such Regulated Holder holding more voting
securities or total securities (equity and debt) than it is
permitted to hold under such regulations.
2.Subparagraph (d) of Section 8, Information Rights and Related
Covenants, is hereby deleted in its entirety.
3. Except as amended hereby, the Stockholders' Agreement shall
remain in full force and effect and is hereby ratified and confirmed in all
respects.
4. All capitalized terms not defined herein shall have the meanings
set forth in the Stockholders' Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by an officer or partner thereunto duly authorized, all as of the date
first written above.
THE PANTRY, INC.,
a Delaware corporation
By: /s/ Peter J. Sodini
-------------------------------------
Peter J. Sodini
President and Chief Executive Officer
FS EQUITY PARTNERS III, L.P.,
a Delaware limited partnership
By: FS Capital Partners, L.P.
Its: General Partner
By: FS Holdings, Inc.
Its: General Partner
By: /s/ Charles P. Rullman
-------------------------
Charles P. Rullman
Title:
-------------------
FS EQUITY PARTNERS IV, L.P.,
a Delaware limited partnership
By: FS Capital Partners LLC
Its: General Partner
By: /s/ Charles P. Rullman
-------------------------------
Charles P. Rullman
Title:
-------------------------
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FS EQUITY PARTNERS INTERNATIONAL, L.P.,
a Delaware limited partnership
By: FS&Co. International, L.P.
Its: General Partner
By: FS International Holdings
Limited
Its: General Partner
By: /s/ Charles P. Rullman
-------------------------
Charles P. Rullman
Title:
-------------------
CHASE MANHATTAN CAPITAL, L.P.
a Delaware limited partnership
By: /s/ Christopher M. Behrens
----------------------------------
Christopher M. Behrens
Title:
----------------------------
CB CAPITAL INVESTORS, L.P.,
a Delaware limited partnership
By: CB Capital Investors, Inc.
Its: General Partners
By: /s/ Christopher M. Behrens
-------------------------------
Christopher M. Behrens
Title:
-------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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BASEBALL PARTNERS,
a New York general partnership
By: /s/ Christopher M. Behrens
---------------------------
Christopher M. Behrens
General Partner
PETER J. SODINI
/s/ Peter J. Sodini
----------------------------------
Peter J. Sodini
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