Exhibit 10.36
FIRST AMENDMENT TO THE STOCKHOLDERS AGREEMENT
This First Amendment to the Stockholders Agreement (this "AMENDMENT")
is made and entered into as of the 4th day of November, 2005, by and among
▇▇▇▇▇▇▇ Holdings, Inc., formerly CMH Holdings, Inc. (and including its
subsidiaries, the "COMPANY"), the ▇▇▇▇▇▇▇ Founders, the TMHC Founders and the
Investors. Capitalized terms used herein and not otherwise defined have the
meanings ascribed to them in the Stockholders Agreement (as defined below) or
the Contribution Agreement (as defined below), as the context requires. The
Company, the ▇▇▇▇▇▇▇ Founders, the TMHC Founders and the Investors may be
referred to collectively in this Amendment as the "PARTIES."
WHEREAS, the Company, the ▇▇▇▇▇▇▇ Founders, the TMHC Founders and the
Investors are each a party to that certain Stockholders Agreement, dated March
31, 2005 (the "STOCKHOLDERS AGREEMENT"); and
WHEREAS, the Parties hereto have agreed to amend and restate certain
provisions of the Stockholders Agreement, and therefore desire to amend the
Stockholders Agreement pursuant to Section 7.3 thereof.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and undertakings contained herein, subject to and on the terms and
conditions herein set forth, and intending to be bound hereby, the Parties agree
as follows:
1. GRP Holdings, Inc. ("GRP"), ▇▇▇▇▇▇▇ Services, Inc. ("▇▇▇▇▇▇▇
SERVICES"), the ▇▇▇▇▇▇▇ Founders and certain of the Investors (the "▇▇▇▇▇▇▇
INVESTORS") are parties to a certain Contribution and Asset Transfer Agreement,
dated as of June 29, 2004, as amended (the "▇▇▇▇▇▇▇ CONTRIBUTION AGREEMENT"). In
connection with the this Agreement, the parties to the Contribution Agreement
hereby agree to the following provisions relating to the Contribution Agreement,
which provisions are expressly acknowledged and agreed to by all of the parties
to this Agreement.
2. Section 1.15(c) of the ▇▇▇▇▇▇▇ Contribution Agreement, as amended by
the Stockholders Agreement, is hereby amended and restated in its entirety as
follows:
"Promptly upon the execution of the First Amendment to the Stockholders
Agreement on November 4, 2005, an amount equal to $10.0 million, together with
any interest or other income earned thereon (other than a portion of the
interest that will be distributed to the ▇▇▇▇▇▇▇ Investors to pay any taxes
imposed in respect of such interest), shall be paid in full satisfaction of the
Second Contingent Payment, such amount to be paid from the Escrow Deposit and in
accordance with the terms of Section 1.3(d) hereof. For the avoidance of doubt,
the aforementioned payment shall be distributed in accordance with the terms of
Section 6.14(a) of the Stockholders Agreement."
3. Section 1.15(d) of the ▇▇▇▇▇▇▇ Contribution Agreement, as amended by
Section 6.14(c) of the Stockholders Agreement, is hereby amended and restated in
its entirety to read as follows:
"Upon the earlier to occur of any of the following four events, (each,
a "CONTINGENT PAYMENT RELEASE EVENT"): (i) the consummation of a QPO (as such
term is defined in the Company's Second Amended and Restated Certificate of
Incorporation, or "CHARTER"); (ii) the consummation of a Liquidity Event (as
such term is defined in the Charter); (iii) the consummation of a
recapitalization of the Company in which (a) all amounts outstanding under the
senior credit facility of the Company are repaid, (b) all outstanding senior
subordinated notes and subordinated notes issued by the Company and/or its
subsidiaries, are repurchased in full, and (c) the holders of Convertible
Preferred Stock (as such term is defined in the Charter) are paid an
Extraordinary Dividend (as such term is defined in the Charter) in any amount;
or (iv) the later of (x) March 31, 2006 or (y) the delivery of signed audited
financial statements of the Company, but in no event later than May 1, 2006,
▇▇▇▇▇▇▇ Services shall pay to Silverheels, Inc., on behalf of Silverheels, Inc.,
the ▇▇▇▇▇▇▇ Subsidiaries and the Founding Stockholders, an amount equal to
$13.25 million in full satisfaction of the Third Contingent Payment and the
Fourth Contingent Payment, by delivery of a certified or official bank check
payable in immediately available funds to Silverheels, Inc. or by causing such
payment of immediately available funds to be credited to an account or accounts
as may be designated by Silverheels, Inc., on behalf of Silverheels, Inc., the
▇▇▇▇▇▇▇ Subsidiaries and the Founding Stockholders. For the avoidance of doubt
and subject to Sections 1.3(d) and 1.17 of the ▇▇▇▇▇▇▇ Contribution Agreement,
the obligation to make any such payments shall constitute an obligation solely
of the Company and not of any of the Investors. Upon the occurrence of a
Contingent Payment Release Event and subsequent payment to Silverheels, Inc. as
described above, all obligations of the Company and its subsidiaries to
Silverheels, Inc., the ▇▇▇▇▇▇▇ Subsidiaries and the Founding Stockholders with
respect to the Contingent Payments shall be satisfied in full and discharged
completely."
4. Section 1.15(f) of the ▇▇▇▇▇▇▇ Contribution Agreement, as amended by
the Stockholders Agreement, is hereby deleted in its entirety.
5. The sections of the Stockholders Agreement that have not been
amended hereby shall remain in full force and effect. Unless expressly provided
to the contrary in this Amendment, the Parties do not waive any rights they may
have under the Stockholders Agreement, all of which rights are hereby expressly
reserved. The sections of the Stockholders Agreement, as amended hereby, shall
remain in full force and effect. For the avoidance of doubt, to the extent that
the provisions of this Amendment conflict or are inconsistent with the
provisions of the Stockholders Agreement, the provisions of this Amendment shall
prevail.
6. This Amendment may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties in
separate counterparts, each of which when executed and delivered shall be deemed
to be an original but all of which taken together shall constitute one and the
same agreement.
7. This Amendment shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first set forth above.
NEW HOLDINGS:
▇▇▇▇▇▇▇ HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
FOUNDERS:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
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Address For Notice:
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Address For Notice:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Address For Notice:
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Address For Notice:
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Address For Notice:
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BNS FAMILY IRREVOCABLE GRANTOR
TRUST
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Person
Address For Notice:
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▇▇▇▇▇▇▇ CHARITABLE REMAINDER
UNITRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Trustee
Address For Notice:
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INVESTORS:
TA IX L.P.
By: TA Associates IX LLC, its General Partner
By: TA Associates, Inc., its Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Managing Director
TA/ATLANTIC AND PACIFIC IV L.P.
By: TA Associates AP IV L.P., its General Partner
By: TA Associates, Inc., its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Managing Director
TA STRATEGIC PARTNERS FUND A L.P.
By: TA Associates SPF L.P., its General Partner
By: TA Associates, Inc., its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Managing Director
TA STRATEGIC PARTNERS FUND B L.P.
By: TA Associates SPF L.P., its General Partner
By: TA Associates, Inc., its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Managing Director
TA INVESTORS II, L.P.
By: TA Associates, Inc., its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Managing Director
TA SUBORDINATED DEBT FUND, L.P.
By: TA Associates SDF LLC, its General Partner
By: TA Associates, Inc., its Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Managing Director
MADISON CAPITAL FUNDING LLC
By:
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Name:
Its: Managing Director
▇▇▇▇▇▇ FAMILY HOLDINGS LLC
By:
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Name:
Its:
ACKNOWLEDGED AND AGREED:
GRP HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇▇ SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
