Exhibit
10.38


 


FORM OF AMENDMENT NO. 1 TO THE SECOND AMENDED AND
RESTATED STOCKHOLDERS’ AGREEMENT


 


AMENDMENT NO. 1 TO

THE SECOND AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT


 


This Amendment No. 1
(this “Amendment Agreement”)
dated as of August    , 2005 (the “Effective Date”) to the Second Amended
and Restated Stockholders’ Agreement, dated February 6, 2003, (the “Stockholders’ Agreement”), is entered
into by and among RBC Bearings Incorporated (f/k/a Roller Bearing Holding
Company Inc.), a Delaware corporation (the “Company”
or “Holdings”), Whitney
RBHC Investor, LLC a Delaware limited liability company (“Whitney Investor”) and Whitney V,
L.P., a Delaware limited partnership (“Whitney
V” and, collectively with Whitney Investor, “Whitney”), Dr. Michael J. Hartnett and
Hartnett Family Investments, L.P., a Delaware limited partnership (together
with Dr. Michael J. Hartnett, “Hartnett” and together with Whitney,
collectively the “Initial Parties”
and individually an “Initial Party”).


 


WHEREAS, the Initial
Parties entered into the Stockholders’ Agreement, setting forth their
agreements regarding certain matters relating to their ownership of the Shares
and the Warrants;


 


WHEREAS, in accordance
with Section 7.1 of the Stockholders’ Agreement, which provides that the
provisions of the Stockholders’ Agreement may be amended, modified or waived
only by the execution of a written instrument signed by each of the Initial
Parties or a person designated by them pursuant to Section 2.6, each of the
Initial Parties desire to amend the Stockholders’ Agreement by executing and
delivering this Amendment Agreement;


 


WHEREAS, the Initial
Parties desire to amend the Stockholders Agreement as stated in this Amendment
Agreement effective as of the Effective Date in order to more fully reflect the
automatic termination of certain provisions of the Stockholders’ Agreement
occur upon the consummation of an Initial Public Offering, to reflect a change
in the name of Holdings and to update notice addresses for certain of the
Initial Parties and their respective legal counsel;


 


NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties, the
Initial Parties each hereby agree as follows:


 


Section 1.               Defined
Terms.  Capitalized terms used but
not otherwise defined herein shall have the meanings ascribed to them in the
Stockholders’ Agreement.


 


Section 2.               Amendment
to the Introductory Paragraph to the Stockholders Agreement.  The definition of Holdings in the second line
of the introductory paragraph on the first page of the Stockholders Agreement
which currently reads “Roller Bearing Holding Company, Inc., a Delaware
Corporation (“Holdings”)”
is hereby deleted and replaced with “RBC Bearings Incorporated, a Delaware
corporation (“Holdings” or
the “Company”)”.


 





















 


Section 3.               Amendment
to Section 1 to the Stockholders Agreement. 
The following definitions in Section 1 shall be deleted in their
entirety and replaced with “[Intentionally Omitted]:


 


1.2 “Applicable Subordinated Debt”


 


1.3 “Board”


 


1.9 “Exercise Price”


 


1.10 “Hartnett Employment Agreement”


 


1.11 “Immediate Family”


 


1.12 “Indemnification Shares”


 


1.14 “Management Services Agreement”


 


1.15 “Minimum Hartnett Ownership”


 


1.16 “Minimum Whitney Common Ownership”


 


1.17 “Minimum Whitney Ownership”


 


1.18 “Minimum Whitney Preferred Ownership”


 


1.19 “New Stock Purchase Agreement”


 


1.20 “Old Stock Purchase Agreement”


 


1.21 “Outstanding Common Shares”


 


1.22 “Permitted Transfer”


 


1.26 “Public Sale”


 


1.27 “RBCA”


 


1.28 “Sale of Business Transaction”


 


1.30 “Third Stock Purchase Agreement”


 


1.31 “Voting Power”


 


1.32 “Whitney IRR”


 


1.34 “Whitney Notice Parties”


 


Section 1.36 shall be deleted in its entirety and
replaced with the following (page references in the table below shall continue
refer to the original pagination of the Stockholders’ Agreement prior to giving
effect to this Amendment Agreement):


 


2





















 


1.36         Additional
Defined Terms.


 


The following terms are defined elsewhere in this Agreement
in the Sections and on the pages indicated:


 


	
  Defined Term

  	
   

  	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Act

  	
   

  	
  1.13

  	
   

  	
  3

  
	
  Affiliate

  	
   

  	
  1.1

  	
   

  	
  2

  
	
  Class A Common Stock

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Class B Common Stock

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Class A Preferred Stock

  	
   

  	
  Recitations

  	
   

  	
  2

  
	
  Class B Preferred Stock

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Commission

  	
   

  	
  4.2(a)

  	
   

  	
  22

  
	
  Common Stock

  	
   

  	
  1.6

  	
   

  	
  2

  
	
  Company

  	
   

  	
  Introduction

  	
   

  	
  8

  
	
  Control

  	
   

  	
  1.7

  	
   

  	
  2

  
	
  Controlled by

  	
   

  	
  1.7

  	
   

  	
  2

  
	
  Demanding Holders

  	
   

  	
  4.2(a)

  	
   

  	
  22

  
	
  Demand Notice

  	
   

  	
  4.2(a)

  	
   

  	
  22

  
	
  Demand Registration
  Period

  	
   

  	
  4.3(a)

  	
   

  	
  23

  
	
  Demand Registration
  Statement

  	
   

  	
  4.2(a)

  	
   

  	
  22

  
	
  Demand Securities

  	
   

  	
  4.2(a)

  	
   

  	
  22

  
	
  Derivative Securities

  	
   

  	
  1.8

  	
   

  	
  2

  
	
  Exchange Act

  	
   

  	
  4.3(d)

  	
   

  	
  27

  
	
  Existing Stockholders’
  Agreement

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Hartnett

  	
   

  	
  Introduction

  	
   

  	
  1

  
	
  Hartnett Class B
  Preferred Shares

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Hartnett Common Shares

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Hartnett Securities

  	
   

  	
  1.29

  	
   

  	
  4

  
	
  Hartnett Shares

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Holdings

  	
   

  	
  Introduction

  	
   

  	
  1

  
	
  in Control of

  	
   

  	
  1.7

  	
   

  	
  2

  
	
  Indemnified Parties

  	
   

  	
  4.3(d)

  	
   

  	
  27

  
	
  Indemnifying Party

  	
   

  	
  4.3(f)

  	
   

  	
  28

  
	
  Initial Parties

  	
   

  	
  Introduction

  	
   

  	
  1

  
	
  Initial Party

  	
   

  	
  Introduction

  	
   

  	
  1

  
	
  Initial Public Offering

  	
   

  	
  1.13

  	
   

  	
  3

  
	
  Permitted Transferee

  	
   

  	
  1.23

  	
   

  	
  4

  
	
  Person

  	
   

  	
  1.24

  	
   

  	
  4

  
	
  Piggyback Shares

  	
   

  	
  4.1

  	
   

  	
  21

  
	
  Registered Securities

  	
   

  	
  4.3(c)(ii)(D)

  	
   

  	
  24

  
	
  Registering Parties

  	
   

  	
  4.1

  	
   

  	
  21

  
	
  Registration Statement

  	
   

  	
  4.1

  	
   

  	
  21

  
	
  Securities

  	
   

  	
  Recitations

  	
   

  	
  4

  
	
  Shares

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Third Party Securities

  	
   

  	
  4.1

  	
   

  	
  21

  
	
  under common Control
  with

  	
   

  	
  1.7

  	
   

  	
  2

  
	
  Underwriter’s Cutback

  	
   

  	
  4.1

  	
   

  	
  21

  
	
  Warrants

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Whitney

  	
   

  	
  Introduction

  	
   

  	
  1

  
	
  Whitney Class B
  Preferred Shares

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Whitney Common Shares

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Whitney Investor

  	
   

  	
  Introduction

  	
   

  	
  1

  



 


3





















 


	
  Defined Term

  	
   

  	
  Section

  	
   

  	
  Page

  
	
  Whitney Management

  	
   

  	
  1.33

  	
   

  	
  5

  
	
  Whitney Parties

  	
   

  	
  1.35

  	
   

  	
  5

  
	
  Whitney Securities

  	
   

  	
  1.29

  	
   

  	
  4

  
	
  Whitney V

  	
   

  	
  Recitations

  	
   

  	
  1

  



 


Section 4.               Amendment
to Section 2 to the Stockholders Agreement. 
Section 2 of the Stockholders Agreement is hereby deleted in its entirety
and shall be replaced with “[Intentionally Omitted]”.


 


Section 5.               Amendment
to Section 3 to the Stockholders Agreement. 
Section 3 of the Stockholders Agreement is hereby deleted in its
entirety and shall be replaced with “[Intentionally Omitted]”.


 


Section 6.               Amendment
to Section 5 to the Stockholders Agreement. 
Section 5 of the Stockholders Agreement is hereby deleted in its
entirety and shall be replaced with “[Intentionally Omitted]”.


 


Section 7.               Amendment
to Section 6 to the Stockholders Agreement. 
Section 6 of the Stockholders Agreement is hereby deleted in its
entirety and shall be replaced with “[Intentionally Omitted]”.


 


Section 8.               Amendment
to Section 8 to the Stockholders Agreement. 
Section 8 of the Stockholders Agreement is hereby amended to delete each
of the addresses appearing between the first and final paragraphs of such
section and replacing such addresses as follows:


 


If to Holdings:


 


	
  RBC Bearings
  Incorporated

  
	
  One Tribology Center

  
	
  Oxford, CT 06478

  
	
  Telecopier: (203)
  267-5001

  



 


With a copy (which shall
not constitute notice) to:


 


	
  Kirkland & Ellis
  LLP

  
	
  Citigroup Center

  
	
  153 East 53rd
  Street

  
	
  New York, NY 10022

  
	
  Telecopier: (212)
  446-4900

  
	
  Attn: Joshua N. Korff

  



 


4





















 


If to any Whitney Party


 


	
  Whitney & Co.

  
	
  177 Broad Street

  
	
  Stamford Connecticut

  
	
  Telecopier: (203)
  973-1422

  
	
  Attention: Michael R.
  Stone, Ransom A. Langford, Kevin Curley

  



 


With a copy (which shall
not constitute notice to) to:


 


	
  Kirkland & Ellis
  LLP

  
	
  Citigroup Center

  
	
  153 East 53rd
  Street

  
	
  New York, NY 10022

  
	
  Telecopier: (212)
  446-4900

  
	
  Attn: Armand A. Della
  Monica

  



 


If to Hartnett:


 


	
  Dr. Michael J. Hartnett

  
	
  c/o RBC Bearings
  Incorporated

  
	
  One Tribology Center

  
	
  Oxford, CT 06478

  
	
  Telecopier: (203)
  267-5001

  



 


With a copy (which shall
not constitute notice to) to:


 


	
  Kirkland & Ellis
  LLP

  
	
  Citigroup Center

  
	
  153 East 53rd
  Street

  
	
  New York, NY 10022

  
	
  Telecopier: (212)
  446-4900

  
	
  Attn: Joshua N. Korff

  



 


Section 9.               Miscellaneous.


 


9.01         Continuance
of the Stockholders Agreement. 
Except as specifically amended by this Amendment Agreement, the
Stockholders Agreement shall remain in full force and effect.


 


9.02         Counterparts.  This
Amendment Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original and all of which, taken together, shall
constitute a single Amendment Agreement. 
Any counterpart may be executed by facsimile signature and such facsimile
signature shall be deemed an original.


 


9.03         Governing
Law.  All issues and questions
concerning the construction, validity, enforcement and interpretation of this
Amendment Agreement shall be governed by, and


 


5





















 


construed in accordance with, the laws of the State of
New York, without giving effect to any choice of law or conflict of law rules
or provisions (whether of the State of New York of any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the
State of New York.


 


*              *              *              *              *              *


 


6





















 


IN WITNESS WHEREOF, the parties hereto have caused
this Amendment No. 1 to the Stockholders’ Agreement to be signed as of the date
first above written.


 


 


	
   

  	
  RBC BEARINGS
  INCORPORATED

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Michael J. Hartnett

  	
   

  
	
   

  	
  Title:

  	
  President and Chief
  Executive Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  HARTNETT FAMILY
  INVESTMENTS, L.P.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Michael J. Hartnett

  	
   

  
	
   

  	
  Title:

  	
  General Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WHITNEY RBHC INVESTOR,
  LLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: Whitney V, L.P.,

  	
   

  
	
   

  	
  its Managing Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: Whitney Equity
  Partners V, LLC,

  	
   

  
	
   

  	
  its General Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WHITNEY V, L.P.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: Whitney Equity Partners
  V, LLC,

  	
   

  
	
   

  	
  its General Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


 


Signature Page to Amendment No. 1
to Stockholders Agreement


 


7