EXHIBIT 5
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
This Amendment to Registration Rights Agreement dated as of August 13, 1997
(this "Amendment") amends that certain Registration Rights Agreement dated as of
November 30, 1995 (the "Agreement") and is entered into between Xxxxx
Xxxxxxxxxxx Company (formerly known as Xxxxx, Inc.), a Delaware corporation (the
"Issuer"), and Marley Holdings, L.P., a Delaware limited partnership ("Marley").
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Agreement, except as otherwise modified by this
Amendment.
RECITALS
WHEREAS, Marley intends to distribute to its partners the Registrable
Securities held by Marley as of the date hereof (the "Distribution") in
connection with an offering of Common Stock by the Issuer and certain selling
stockholders pursuant to a Registration Statement on Form S-2 (File No.
333-29581) (the "Offering");
WHEREAS, Section 12(d) of the Agreement provides that the Agreement,
including without limitation all registration rights in connection with the
ownership of all or a portion of the Registrable Securities pursuant to Sections
3 and 4 thereof, shall inure to the benefit of and be binding upon the
successors and assigns of each of the Issuer and the Investor, including without
limitation and without the need for an express assignment, subsequent holders of
Registrable Securities held by the Investor; and
WHEREAS, Marley and the Issuer desire to confirm their interpretation of the
Agreement with respect to the manner in which certain matters will be treated
under the Agreement after the Distribution and Offering;
NOW, THEREFORE, the parties agree as follows:
1. EFFECTIVE DATE. This Amendment shall take effect immediately upon the
closing of the Offering. The Agreement, as amended hereby, shall otherwise
remain in full force and effect.
2. ACKNOWLEDGMENT OF DISTRIBUTION; HOLDERS. The Issuer confirms its
knowledge of the Distribution and agrees that each current and former
partner of Marley (whether or not Marley shall continue in existence), and
each subsequent successor or assign thereof, for as long as such Person
shall hold Registrable Securities, shall be considered a "Holder" for
purposes of the Agreement; provided, that as to any transfer of Registrable
Securities that occurs after the Distribution, the Issuer is notified in
writing of (i) the name and address of such transferee and (ii) the number
of Registrable Securities held by the transferee.
3. AMENDED AND RESTATED DEFINITIONS. The definition of "Initiating
Holders" and "Investors" set forth in Section 1 of the Agreement shall be
amended and restated to read as follows:
"INITIATING HOLDERS: Either (i) the Holder(s) owning a majority of
the Registrable Securities that are then owned by the successors and
assigns of Marley collectively or, (ii) if the requirements of Section
4.4(b) of the Stockholders Agreement are fully complied with, Minority
Stockholders (as defined in the Stockholders Agreement) owning a majority
of the Registrable Stock (as defined in the Stockholders Agreement)."
"INVESTOR: The former partners of Marley and any of their successors
or assigns who hold Registrable Securities, collectively; provided
however, that for purposes of Section 6 and 12(b) of the Agreement,
"INVESTOR" shall mean Marley G.P., Inc. or its designee or assignee."
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4. AMENDED DEFINITION. The definition of "Registrable Securities" set
forth in Section 1 of the Agreement shall be amended by deleting the phrase
"held by the Investor" in the first line and replacing the same with "issued
in August 1992 to Marley."
5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to constitute an original
Amendment when delivered, and all of which shall constitute one Amendment.
The execution of one counterpart by any party shall have the same effect as
if that party had signed all other counterparts.
IN WITNESS WHEREOF, the parties have executed this Amendment through their
duly authorized representatives as set forth below:
XXXXX XXXXXXXXXXX COMPANY
MARLEY HOLDINGS, L.P.
By: Marley G.P., Inc.
Its General Partner
Signature: /s/ XXXX X. XXXXXX
-------------------------------------------- Signature: /s/ XXXXXXXXX XXXXXXXXXXX
Printed Name: Xxxx X. Xxxxxx --------------------------------------------
Title: VICE PRESIDENT, GENERAL COUNSEL AND Printed Name: Xxxxxxxxx Xxxxxxxxxxx
SECRETARY Title: PRESIDENT
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