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THIRD AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
This Third Amendment to Registration Rights Agreement ("Amendment") is
made as of January 27, 1997, by and among E-Z Serve Corporation, a Delaware
Corporation (the "Company"), Phemus Corporation, a Massachusetts corporation
("Phemus"), Intercontinental Mining & Resources Incorporated, a British Virgin
Islands corporation ("IMR"), and Quadrant Capital Corp., a Delaware
corporation, formerly named Intercontinental Mining & Resources Limited
("QCC"). Phemus, IMR and QCC are referred to herein together as the
"Investors."
WHEREAS, the Company and the Investors entered into that certain
Registration Rights Agreement dated as of March 25, 1992, as amended on July
31, 1992 and April 21, 1993 (the "Agreement"); and
WHEREAS, the Investors (i) hold an aggregate of at least sixty-six and
two-thirds percent (66 2/3%) of the aggregate of the Registrable Securities (as
defined in the Agreement) outstanding as of the date hereof, and (ii) pursuant
to Section 2.4 of the Agreement, may consent to an amendment of the Agreement;
and
WHEREAS, as of the date hereof, the Company has issued warrants to
purchase Common Stock of the Company to Phemus in conjunction with the issuance
by the Company of shares of its Series H Preferred Stock, par value $0.01 per
share; and
WHEREAS, the parties desire to amend the Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Section 1.1(b) of the Agreement is hereby amended in its
entirety to be as follows:
(b) The term "Registrable Securities" means (1) the Common
Stock issued or issuable upon the conversion of the Shares, (2) the
Common Stock issued or issuable upon the conversion of the Series D
Preferred which is issued or issuable upon the exercise of the D
Warrants, (3) the Common Stock issued or issuable pursuant to the D
Warrants, (4) the Common Stock issued or issuable upon the conversion
of the shares of the Company's Series F Convertible Preferred Stock
issued to Phemus Corporation and Intercontinental Mining & Resources
Incorporated on April 20, 1993, (5) the Common Stock issued or
issuable upon the exercise of the
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warrants issued to Phemus Corporation and Intercontinental Mining &
Resources Incorporated on April 20, 1993, (6) the Common Stock issued
upon the exercise of warrants issued or issuable under the Securities
Purchase Agreement dated January 27, 1997, between the Company and
Phemus Corporation, and (7) any Common Stock of the Company issued (or
issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such
securities described in (1), (2), (3), (4), (5) or (6) of this
paragraph; provided, however, that any shares previously sold to the
public pursuant to a registered public offering or pursuant to an
exemption from the registration requirements of the 1933 Act shall
cease to be Registrable Securities;
Except as expressly amended herein, the Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first above written.
E-Z SERVE CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Senior Vice President
PHEMUS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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QUADRANT CAPITAL CORP.
By:
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Name:
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Title:
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INTERCONTINENTAL MINING & RESOURCES
INCORPORATED
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Attorney in Fact
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