Exhibit 4.6
AMENDMENT NO. 1 TO THE THIRD AMENDED
AND RESTATED STOCKHOLDERS' AGREEMENT
Amendment No. 1, dated as of November 20, 2000, to the Third
Amended and Restated Stockholders' Agreement, dated as of April 20, 1999 (the
"Stockholders' Agreement"), by and among the Company, the WCAS Purchasers, TPC,
CIBC II, CIBC III, Caravelle, JHW II, JHW III, JHW Strategic III, JHW Mezzanine,
Clark, Tomick, Bryne, Waller, Kitty Hawk III, Kitty Hawk IV, Eagle Creek, Finley
LP, NCEF, Lutkewich, Jackman, Eckert, Gupton, Price LP and Benake. Unless
otherwise defined herein, defined terms shall have such meanings ascribed to
them in the Stockholders' Agreement.
WHEREAS, pursuant to the terms of that certain Purchase
Agreement, dated as of November 20, 2000 (the "Trimaran Purchase Agreement"), by
and among the Company and Trimaran Fund II, L.L.C. ("Trimaran II"), Trimaran
Capital, L.L.C. ("Trimaran Capital"), Trimaran Parallel Fund II, L.P. ("Trimaran
Parallel"), CIBC Employee Private Equity Fund (Trimaran) Partners ("Employee
Trimaran Fund") and CIBC World Markets Ireland Limited ("CIBC Ireland" and,
collectively with Trimaran II, Trimaran Capital, Trimaran Parallel and Employee
Trimaran Fund, the "Trimaran Purchasers"), the Company is selling shares of
Common Stock and issuing warrants to purchase shares of Common Stock (the
"Warrants") to the Trimaran Purchasers as more fully described in Section 1.01
of the Trimaran Purchase Agreement; and
WHEREAS, pursuant to Section 18 of the Stockholders'
Agreement, the Company and the Stockholders desire to amend the Stockholders'
Agreement to make changes to the CIBC Purchasers' rights and make such
amendments, as more particularly set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereby agree as
follows:
1. Amendment of Section 1(a)(ii)d).
Section 1(a)(ii)d) of the Stockholders' Agreement is hereby
amended in its entirety and replaced with the following:
"d) [Intentionally Omitted.]"
2. Addition of Section 1(f).
Section 1 of the Stockholders' Agreement is hereby amended
by adding a new paragraph (f) to read as follows:
"(f) The CIBC Purchasers shall have the right to
designate a representative to attend as an observer all
meetings of the Company's Board of Directors and to receive
all notices distributed to members of the Company's Board of
Directors at the same time and in the same manner as so
distributed. The Company shall provide such observer with such
information as the observer shall reasonably request."
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3. Amendment of Section 10(b).
Section 10(b) of the Stockholders' Agreement is hereby amended
in its entirety and replaced with the following:
"(b) The respective rights granted to the WCAS
Purchasers, the Whitney Purchasers and TPC pursuant to
Section 1 shall terminate as to any group of Purchasers on
the earlier to occur of (i) the sale, transfer or other
disposition (including a disposition by a partnership to its
partners or a limited liability company to its members) by
such respective group of Purchasers of at least 50% of the
shares of Capital Stock held by such group of Purchasers on
the date of this Amendment or (ii) the ownership of Capital
Stock held by such Purchasers shall fall below 8% of the
outstanding Capital Stock of the Company. The rights granted
to the CIBC Purchasers pursuant to Section 1 shall terminate
if the aggregate ownership of Capital Stock held by the
Trimaran Fund II, L.L.C. ("Trimaran II"), Trimaran Capital,
L.L.C. ("Trimaran Capital"), Trimaran Parallel Fund II, L.P.
("Trimaran Parallel"), CIBC Employee Private Equity Fund
(Trimaran) Partners ("Employee Trimaran Fund") and CIBC World
Markets Ireland Limited ("CIBC Ireland" and, collectively
with Trimaran II, Trimaran Capital, Trimaran Parallel and
Employee Trimaran Fund, the "Trimaran Purchasers"), the
Permitted Trimaran Assignees and the CIBC Purchasers, in the
aggregate, shall fall below 5% of the outstanding Capital
Stock of the Company. For purposes of the foregoing,
"Permitted Trimaran Assignees" shall mean (i) any Affiliate
of any Trimaran Purchaser, (ii) Caravelle, (iii) Caravelle
Investment Fund II, L.L.C., (iv) any investment fund
controlled by at least two of Messrs. Jay Bloom, Andrew Heyer
or Dean Kehler, (v) any person (a) managed by CIBC World
Markets Corp. ("CIBC World Markets") or Trimaran II
(including any Affiliates thereof) or at least two of Messrs.
Bloom, Heyer or Kehler and (b) substantially all the equity
interests which are owned, directly or indirectly, by (1)
members in Trimaran II, (2) employees of CIBC World Markets
or any Affiliate thereof, (3) any investor in the Trimaran
investment program that has co-investment rights or (4) any
combination of the persons named in the immediately preceding
clauses (1), (2) or (3) or any successor to any Trimaran
Purchaser or any of the foregoing persons."
4. Representations and Warranties by the Company.
(a) The Company hereby represents and warrants to the other
parties hereto that the execution, delivery and performance of this Amendment by
the Company will not violate any provision of applicable law, any order of any
court or other agency of government, or any provision of any indenture,
agreement or other instrument to which the Company or any of its properties or
assets is bound, or conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument, except for such violations, conflicts or breaches which,
individually or in the aggregate, would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
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(b) This Amendment has been duly executed and delivered by the
Company and when this Amendment is executed by the other parties hereto, the
Stockholders' Agreement as amended by this Amendment, will constitute the legal,
valid and binding obligation of the Company, enforceable in accordance with its
terms.
5. Continuing Effect of Stockholders' Agreement. This Amendment shall not
constitute an amendment or modification of any other provision of the
Stockholders' Agreement not expressly referred to herein. Except as expressly
amended or modified herein, the provisions of the Stockholders' Agreement are
and shall remain in full force and effect.
6. Counterparts. This Amendment may be executed by one or more of the parties
hereto on any number of separate counterparts and all such counterparts shall be
deemed to be one and the same instrument. Each party hereto confirms that any
facsimile copy of such party's executed counterpart of this Amendment (or its
signature page thereof) shall be deemed to be an executed original thereof.
7. Governing Law. This Amendment shall be governed by, and interpreted and
construed in accordance with, the internal laws of the State of Delaware,
without regard to principles of conflicts of law.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
agreement, as of the day and year first above written.
WELSH, CARSON, ANDERSON & STOWE VIII, L.P.
By: WCAS VIII Associates, L.L.C.,
its General Partner
By: /s/ Lawrence B. Sorrel
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Name: Lawrence B. Sorrel
Title:
WCAS CAPITAL PARTNERS III, L.P.
By: WCAS CP III Associates, L.L.C.,
its General Partner
By: /s/ Lawrence B. Sorrel
---------------------------------
Name: Lawrence B. Sorrel
Title:
WCAS INFORMATION PARTNERS, L.P.
By: /s/ Lawrence B. Sorrel
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Name: Lawrence B. Sorrel
Title:
TOWER PARENT CORP.
By:
-----------------------------------
Name:
Title:
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CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title:Attorney-in-Fact
CO-INVESTMENT MERCHANT FUND 3, LLC
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title:Attorney-in Fact
CARAVELLE INVESTMENT FUND, L.L.C.
By: Caravelle Advisors, L.L.C.,
as its Investment Manager and
Attorney-in-Fact
By: (illegible signature)
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Name:
Title:
WHITNEY EQUITY PARTNERS, L.P.
By: Whitney Equity Partners, LLC, its
General Partner
By:
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Name:
Title:
J.H. WHITNEY III, L.P.
By: J.H. Whitney Equity Partners III,
LLC, its General Partner
By:
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Name:
Title:
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WHITNEY STRATEGIC PARTNERS III, L.P.
By: J.H. Whitney Equity Partners III
L.L.C., its General Partner
By:
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Name:
Title:
WHITNEY MEZZANINE MANAGEMENT COMPANY, L.L.C.
By: Whitney Holdings, LLC, Member
By:
------------------------------------
Name:
Title:
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Stephen H. Clark
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David P. Tomick
WALLER SUTTON MEDIA PARTNERS, L.P.
By: Waller Sutton Media Partners, LLC,
its General Partner
By:
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Name:
Title:
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KITTY HAWK CAPITAL LIMITED PARTNERSHIP, III
By: Kitty Hawk Partners Limited Partnership,
III, its General Partner
By:
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Name:
Title:
KITTY HAWK CAPITAL LIMITED PARTNERSHIP, IV
By: Kitty Hawk Partners LLC, IV, its General
Partner
By:
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Name:
Title:
EAGLE CREEK CAPITAL, LLC
By:
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Name:
Title:
FINLEY FAMILY LIMITED PARTNERSHIP
By:
Name:
Title:
THE NORTH CAROLINA ENTERPRISE FUND, L.P.
By: The North Carolina Enterprise
Corporation, its General Partner
By:
Name:
Title:
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Edward J. Lutkewich
---------------------------------
Jack W. Jackman
---------------------------------
Alton D. Eckert
---------------------------------
William R. Grupton
THE PRICE FAMILY LIMITED PARTNERSHIP
By:
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Name:
Title:
BENAKE LP
By:
---------------------------------
Name:
Title:
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Richard Byrne