Exhibit C
AMENDMENT TO SUPPLEMENTARY AGREEMENT
AMENDMENT TO THE SUPPLEMENTARY AGREEMENT (the "Amendment") is made and
entered into to be effective as of October 3, 1996, by and between DNL Group,
L.L.C., a Delaware Limited Liability Company located at Xxx Xxxxxxxxxxx Xxxxx
Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred to as "DNL
Group") and M&A INVESTMENTS INC., a Delaware corporation located at 0000 Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxx 00000 (hereinafter referred to as "M&A Investments"),
(hereinafter sometimes collectively referred to as "the Parties").
W I T N E S S E T H:
WHEREAS, the DNL Group is the General Partner in DNL Partners, a
Delaware Limited Partnership (the "Limited Partnership") pursuant to that
certain Amended and Restated Agreement of Limited Partnership of DNL Partners,
dated as of August 23, 1995 (the "Limited Partnership Agreement"); and
WHEREAS, the Parties entered into a Supplementary Agreement dated as
of August 18, 1995 (the "Supplementary Agreement"); and
WHEREAS, the Parties desire to amend the Supplementary Agreement and
memorialize certain understandings that have been agreed upon between DNL Group
and M&A Investments.
NOW, THEREFORE, for and in consideration of the mutual covenants set
forth herein and other good and valuable consideration, the adequacy of which is
hereby acknowledged, the Parties do mutually covenant and agree as follows:
1. Amendment of Paragraph 2. Paragraph 2 of the Supplementary
Agreement is hereby amended by deleting the second sentence in the paragraph in
its entirety and replacing it with the following: "In the event of any IPO, M&A
Investments may at any time following 180 days after the consummation of the IPO
their request, in writing to DNL Group, that DNL Group cause the distribution
to M&A Investments of shares of the capital stock of the Company in an amount
representing the constructive interest in the company then held by M&A
Investments through its interest in the Limited Partnership, including M&A
Investments' interests as a limited partner and as assignee of DNL Group under
the Assignment dated August 18, 1995 between the Parties. If, at any time after
M&A Investments has received shares of the capital stock of the Company pursuant
to the preceding sentence (the "M&A Shares"), the Limited Partnership (a)
exercises its registration
rights with respect to all or a portion of the shares of the capital stock of
the Company held by the Limited Partnership (the "Partnership Shares") in
accordance with that certain Subscription Agreement dated as of August 23, 1995
by and between the Company and the Limited Partnership (the "DNL Subscription
Agreement"), or (b) has the opportunity to exercise its piggyback registration
rights under the DNL Subscription Agreement and M&A Investments requests that
such piggyback rights be exercised with respect to all or a portion of the M&A
Shares, then DNL Group shall, upon the written request of M&A Investments,
either (x) cause an amount of the M&A Shares (the "Registrable M&A Shares") to
be included in such registration of the Partnership Shares, in which case the
number of Registrable M&A Shares shall not exceed the total number of M&A Shares
then held by M&A Investments multiplied by a fraction, the numerator of which is
the number of Partnership Shares to be included in such registration and the
denominator of which is the total number of Partnership Shares then held by the
Limited Partnership, or (y) if the Partnership Shares are not being so
registered, cause the Registrable M&A Shares to be registered pursuant to the
exercise of the Limited Partnership's piggyback registration rights. The
Registrable M&A Shares shall be subject to the terms of any such registration as
specified in the DNL Subscription Agreement (including, without limitation, any
cutback of such shares) with the same effect as if they were held by the Limited
Partnership, and M&A Investments agrees to pay its pro rata portion of the
expenses of such registration based on the number of Registrable M&A Shares
included in such registration.
2. Amendment of Paragraph 4. Paragraph 4 of the Supplementary
Agreement is hereby deleted in its entirety; provided that M&A's current
representatives on the Company's Board of Directors shall be permitted to serve
the remainder of their terms.
3. Lock Up Letter. M&A Investments agrees to execute a lock up
letter with respect to its interests, direct or indirect, in the Company,
substantially in the form attached hereto as Exhibit 1. and deliver such letter
to the addressees at or prior to the date of pricing of the IPO.
4. Pledge Transfer or Disposition. M&A Investments represents that
as of the date hereof, no pledge, transfer or other disposition has been made by
M&A Investments of its limited partnership interest in the Limited Partnership.
M&A Investments agrees to notify DNL Group of its intention to pledge or
transfer to any person or otherwise dispose of its limited partnership interest
in the Limited Partnership, at least five days in advance of such pledge,
transfer or other disposition, in writing to the address given in the
introductory paragraph hereto. To the extent that M&A Investments pledges,
transfers or otherwise disposes of its interest in the Limited Partnership, such
pledge, transfer or other disposition is subject to the terms of the Amendment
and the lock up letter referred to in paragraph 3 hereof.
5. Certain Terms. Certain terms used herein and not otherwise
defined herein shall have their respective meanings set forth in the
Supplementary Agreement or the Limited Partnership Agreement.
6. Remaining Provisions. Except as amended hereby, the Limited
Partnership Agreement and the Supplementary Agreement shall continue in full
force and effect.
IN WITNESS WHEREOF, the Parties hereto have caused these presents to
be signed by their proper corporate officers the day and year first above
written
DNL GROUP, L.L.C.
A Limited Liability Company
By:
Xxxxx X. Xxxxx, Senior Vice President
M&A INVESTMENTS, INC.
A Delaware Corporation
By:
Xxxxxxx X. Xxxxx, Manager
Exhibit 1
October 3, 1996
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
and
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation,
as Representatives of the several
Underwriters to be named in the
within-mentioned U.S. Purchase Agreement
Xxxxxxx Xxxxx International
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
as Lead Managers of the several
International Managers named in
the within-mentioned International
Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxx, Inc.
00 Xxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Re: Proposed Public Offering by Xxxxxx, Inc.
Dear Sirs:
The undersigned, a limited partner of DNL Partners, Limited Partnership
("DNL Partners") which is the largest stockholder of Xxxxxx, Inc., a Delaware
corporation (the "Company"), understands that (a) Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ") propose to enter into the U.S.
Purchase Agreement (the "U.S. Purchase Agreement") with the Company and the
Selling Shareholders listed on Schedule B to such U.S. Purchase Agreement and
(b) Xxxxxxx Xxxxx International and DLJ propose to enter into the International
Purchase Agreement (the "International Purchase Agreement", and together
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with the U.S. Purchase Agreement, the "Purchase Agreements") with the Company
and the Selling Shareholders listed on Schedule B to such International Purchase
Agreement; each providing for the public offering of shares (the "Securities")
of the Company's Class A Common Stock, par value $.01 per share (the "Common
Stock"). In recognition of the benefit that such an offering will confer upon
the undersigned as a limited partner of DNL Partners, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each Underwriter and Manager to be
named in each of the Purchase Agreements and the Company that, during a period
of 180 days from the date of the Purchase Agreements, the undersigned will not,
without the prior written consent of Xxxxxxx Xxxxx and the Company, (i) directly
or indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of or otherwise dispose of or transfer any shares
of the Company's Common Stock or any securities convertible into or exchangeable
or exercisable for Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition, or file any registration statement under the
Securities Act of 1933, as amended, with respect to any of the foregoing or (ii)
enter into any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of ownership
of the Common Stock, whether any such swap or transaction is to be settled by
delivery of Common Stock or other securities, in cash or otherwise; provided,
however, that nothing herein shall be deemed to prohibit the undersigned's
pledge of its limited partnership interest in DNL Partners to Credit Lyonnais
New York Branch, as contemplated by the Letter dated September 19, 1996 from DNL
Group, L.L.C. to the undersigned.
Very truly yours,
M&A INVESTMENTS, INC.
By:
Name:
Title:
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