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EXHIBIT 10.4.1
AMENDMENT
Dated as of October 27, 1997
to
REGISTRATION RIGHTS AGREEMENT
Dated as of September 3, 1991
by and among
XXX RIVER INC.,
THE SENIOR MANAGEMENT INVESTORS
REFERRED TO THEREIN
AND
THE HOLDERS REFERRED TO THEREIN
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This AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this "Amendment") is dated
as of October 27, 1997, by and among XXX RIVER INC., a Georgia corporation
(the "Company"), and each of the parties set forth under the caption
"Holders" on the signature page hereto (the "Holders").
WHEREAS, the Company, the Holders and certain other shareholders of the
Company have entered into that certain Registration Rights Agreement, dated
as of September 3, 1991 (the "Agreement"); and
WHEREAS, the Company proposes to consummate an initial public offering of
shares of its Class A Common Stock, par value $.01 per share (the "Class A
Common Stock"), pursuant to a Registration Statement on Form S-1 filed by the
Company with the Securities and Exchange Commission (File No. 333-36479) (the
"Offering"); and
WHEREAS, the parties hereto desire to amend the Agreement in connection
with the Offering;
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
Section 1. Definitions; References. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Agreement shall have the meaning assigned to such term in the Agreement. Each
reference to "hereof," "hereunder," "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other similar
reference contained in the Agreement shall, upon consummation of the Offering,
refer to the Agreement as amended by this Amendment.
Section 2. Amendments to Agreement.
(a) Definitions. Effective upon consummation of the Offering, Section
1. l(b) of the Agreement shall be amended by deleting the definitions of
"Go-Along Securities" and "Preemptive Securities" in their entirety and by
deleting any and all references to such defined terms throughout the
Agreement.
(b) Go-Along. Effective upon consummation of the Offering, Section 2.4 of
the Agreement shall be deleted in its entirety and any and all references to
such Section 2.4 shall be deleted throughout the Agreement.
(c) Preemptive Rights. Effective upon consummation of the Offering,
Section 2.5 of the Agreement shall be deleted in its entirety and any and all
references to such Section 2.5 shall be deleted throughout the Agreement.
Section 3. Termination. If the Offering is not consummated on or before
January 31, 1998, this Agreement shall terminate and be of no further force
or effect, and the Agreement shall not be amended or modified by this
Amendment and shall remain in full force and effect.
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Section 4. The Agreement. Except as expressly amended and modified upon
consummation of the Offering as set forth herein, the Agreement shall not
otherwise be amended or modified and shall remain in full force and effect.
Section 5. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
Section 6. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all of
such counterparts shall together constitute one and the same agreement.
lN WITNESS WHEREOF, this Amendment has been executed by the Company and
each Holder set forth below as of the date first above written.
The Company:
XXX RIVER INC.
By:------------------------
Name:
Title:
Holders:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:------------------------
Name:
Title:
CRESTAR BANK
By:------------------------
Name:
Title:
NATIONSBANK, N.A.
By:------------------------
Name:
Title:
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PILGRIM PRIME RATE TRUST
By:------------------------
Name:
Title:
SOCIETE GENERALE
By:------------------------
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRINCIPAL INCOME TRUST
By:------------------------
Name:
Title:
MEZZANINE INVESTMENT LIMITED
PARTNERSHIP-BDR
By:------------------------
Name:
Title:
FIRST CHICAGO INVESTMENT
CORPORATION
By:------------------------
Name:
Title:
MADISON DEARBORN PARTNERS V
By:------------------------
Name:
Title:
MADISON DEARBORN PARTNERS VI
By:------------------------
Name:
Title:
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