EXHIBIT 4.10
AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT
This Amendment (the "AMENDMENT") is being entered into on June 14, 2000
with respect to a certain Registration Rights Agreement dated February 23, 2000
(the "REGISTRATION RIGHTS AGREEMENT") by and among XxxxxXxxxx.xxx, Inc.
(formerly known as Advanced Communications Group, Inc.), a Delaware corporation
(the "COMPANY"), and Halifax Fund, L.P., a Cayman Island limited partnership,
Xxxxxxx Associates, L.P., a Delaware limited partnership and Westgate
International, L.P., a Cayman Island limited partnership (collectively, the
"INVESTORS"). Terms used herein but not defined shall have the meaning set forth
in that certain related Convertible Debenture Purchase Agreement dated February
23, 2000 (the "PURCHASE AGREEMENT") by and among the Company and the Investors
or the Registration Rights Agreement, except where the context expressly
indicates to the contrary.
R E C I T A L S:
WHEREAS, shortly following the Closing on February 23, 2000, the Company
changed its name from Advanced Communications Group, Inc. to XxxxxXxxxx.xxx,
Inc.;
WHEREAS, pursuant to Section 1.1 of the Purchase Agreement, the Investors
have purchased "INITIAL DEBENTURES" and "INITIAL WARRANTS" (as those terms are
defined in the recitals to the Registration Rights Agreement) from the Company
and, in addition, pursuant to Section 1.3 of the Purchase Agreement, the
Investors may elect, in each of their sole discretion, to purchase "ADDITIONAL
DEBENTURES" (as that term is defined in Section 1.3(b) of the Purchase
Agreement), all as further described in the Purchase Agreement;
WHEREAS, pursuant to Section 1.2 of the Purchase Agreement, in addition to
the foregoing, each of the Investors may elect and/or be required by the
Company, as further set forth in the Purchase Agreement, to purchase "OPTION
DEBENTURES" from the Company, and, upon the Company's issuance of Option
Debentures to such Investors, shall be entitled to receive the "OPTION WARRANTS"
(as those terms is defined in the recitals to the Purchase Agreement) in
connection therewith;
WHEREAS, the Registration Rights Agreement currently provides, among other
things, that the Investors will have registration rights with respect to the
resale of the shares of Common Stock issuable upon conversion of the
"DEBENTURES" (which term includes the Initial Debentures, the Option Debentures
and the Additional Debentures) and exercise of the Warrants (which term includes
the Initial Warrants and the Option Warrants); and
WHEREAS, it has subsequently been agreed to by the Company and each of the
Investors that the Investors shall not be entitled to registration rights with
respect to the resale of the shares of Common Stock to be issued upon conversion
of the Option Debentures and exercise of the related Option Warrants until such
time, if any, that such Option Debentures have been purchased by, and such
Option Warrants have been issued to, the Investors pursuant to Section 1.2 of
the Purchase Agreement.
T E R M S:
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Notwithstanding anything contained in the Registration Rights
Agreement to the contrary, with respect to the Option Debentures and Option
Warrants only, all references to the terms "CLOSING" and "CLOSING DATE" in the
Registration Rights Agreement shall hereinafter be deemed to refer to each
respective "SUBSEQUENT CLOSING" (as defined in Section 1.2(b)(ii) of the
Purchase Agreement) of the purchase of the Option Debentures and issuance of the
related Option Warrants, if any, and each respective "SUBSEQUENT CLOSING DATE"
(as defined in Section 1.2(b)(ii) of the Purchase Agreement) upon which each
such Subsequent Closing shall occur, SO THAT the Company's obligations under the
Registration Rights Agreement (including, but not limited to, the duty to file a
registration statement with respect thereto and/or the duty to list the Common
Stock underlying the Option Debentures and the Option Warrants on an "APPROVED
MARKET" (as that term is defined in Section 2.1(d) of the Purchase Agreement))
shall not begin to accrue with respect to the Option Debentures and Option
Warrants until such time, if any, that such Option Debentures are purchased by,
and such Option Warrants are issued to, the Investors. If the Company has not
exercised the "COMPANY PUT OPTION" (as that term is defined in Section 1.2(b) of
the Purchase Agreement) within the time period set forth in Section 1.2(b)(ii)
of the Purchase Agreement, the Company shall have no obligation to register for
any purpose any shares of Common Stock that would have been issued if the Option
Debentures and/or the Option Warrants had been issued pursuant to Section 1.2(b)
and Section 1.2(c) of the Purchase Agreement.
2. Notwithstanding anything contained in the Registration Rights
Agreement to the contrary, the Company shall file a registration statement in
connection with the resale of the shares of Common Stock to be issued upon
conversion of the Option Debentures and exercise of the related Option Warrants
within ten (10) business days of each Subsequent Closing Date and shall use its
best efforts to cause such registration statement to become effective within
seventy-five (75) days of such Subsequent Closing Date. Remedies which become
available to the Investors with respect to the Initial Debentures, Initial
Warrants and the Additional Debentures commencing upon the 121st day, the 151st
day and the 181st day following the Closing Date and each 30-day period
thereafter pursuant to Section 2(b)(i) and (ii) of the Registration Rights
Agreement shall become available to the Investors with respect to the Option
Debentures and Option Warrants commencing upon the 76th day, the 106th day and
the 136th day and each 30-day period thereafter following the relevant
Subsequent Closing Date, respectively.
3. For example, if the Company were to exercise its Company Put Option to
compel the Investors to purchase a total aggregate principal amount of
$5,000,000 in Option Debentures pursuant to Section 1.2 of the Purchase
Agreement, then, within 10 business days after the related Subsequent Closing
Date on which the Company issued such Option Debentures and related Option
Warrants, the Company shall be obligated under the Registration Rights Agreement
(as amended by this Amendment) to prepare and file a registration statement in
connection with the resale of the shares of Common Stock to be issued upon
conversion of such Option Debentures and exercise of the related Option
Warrants. If one or more Investors were subsequently to exercise their "INVESTOR
CALL OPTIONS" (as that term is defined in Section 1.2(c) of the Purchase
Agreement) to require the Company to sell all or a portion of the total
aggregate principal amount of $2,500,000 in Option Debentures to such
Investor(s) and to issue the related Option Warrants to such Investor(s), then
the Company's obligations under the Registration Rights Agreement with respect
to such Option Debentures and Option Warrants shall commence upon the relevant
Subsequent Closing Date. If, on the 76th day
following a Subsequent Closing Date, a registration statement has not been
declared effective with respect to the resale of the shares of Common Stock to
be issued upon conversion of the Option Debentures and exercise of the related
Option Warrants issued on the Subsequent Closing Date, then the Investors shall
have the same remedies available to it pursuant to Section 2(b)(i) and 2(b)(ii)
on such date with respect to such Option Debentures and Option Warrants that the
Investor(s) had available to it pursuant to Section 2(b)(i) and 2(b)(ii) on the
121st day following the Closing Date with respect to the Initial Debentures,
Initial Warrants and Additional Debentures.
4. Notwithstanding anything contained in the Registration Rights
Agreement to the contrary, with respect to the Option Debentures and Option
Warrants only, the number of shares that are to be included in the registration
statement to be filed within 10 days of a Subsequent Closing Date shall be no
less than the sum of (A) two times the sum of the number of shares of Common
Stock that are as of the Subsequent Closing Date (rather than as of the date of
the Purchase Agreement) issuable upon conversion of the Option Debentures
purchased by the Investors on such Subsequent Closing Date and (B) one and
one-half times the number of shares of Common Stock issuable upon exercise of
the Option Warrants issued to the Investors on such Subsequent Closing Date, in
each case without regard to any limitation on the Investor's ability to convert
the Option Debentures or Option Warrants.
5. Except as provided above, all of the rights and obligations of the
parties with respect to the Registration Statement referred to in the
Registration Rights Agreement shall apply, MUTATIS MUTANDIS, to the registration
statement contemplated by this Amendment. All other provisions of the
Registration Rights Agreement shall be deemed to be changed MUTATIS MUTANDIS to
conform to the changes contemplated herein.
6. Except as set forth above, the Registration Rights Agreement
(including, but not limited to, the obligations of the Company thereunder with
respect to the Initial Debentures, Initial Warrants and Additional Debentures)
and the Purchase Agreement shall remain unmodified and in full force and effect.
7. All references in the Registration Rights Agreement to the "AGREEMENT"
and any other reference of similar import shall henceforth mean the Registration
Rights Agreement, as amended.
8. In the event of any inconsistency or conflict between this Amendment
and the Registration Rights Agreement or the Purchase Agreement, the terms,
provisions and conditions of the Amendment shall govern and control.
9. This Amendment may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same amendment and
shall become effective when counterparts have been signed by each party and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the executing party with the same force and effect as if such
facsimile signature page were an original thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
XXXXXXXXXX.XXX, INC.
(formerly known as Advanced Communications Group, Inc.)
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice-President
INVESTORS:
HALIFAX FUND, L.P.
By: THE PALLADIN GROUP, L.P.,
Attorney-in-Fact
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Managing Director
XXXXXXX ASSOCIATES, L.P.
By: /s/
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Name:
Title:
WESTGATE INTERNATIONAL, L.P.
By: XXXXXXX INTERNATIONAL CAPITAL ADVISORS
INC. (formerly known as Martley International,
Inc.), Attorney-in-Fact
By: /s/
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Name:
Title:
