EXECUTION COPY
AMENDMENT TO REGISTRATON RIGHTS AGREEMENT
AMENDMENT (the "Amendment"), dated as of May 8, 2000 to the
Registration Rights Agreement by and among xxxxxxxx.xxx, inc. (the
"Company"), and Yale Brozen and Xxxxxxxx Xxxxxx, dated as of February 22,
2000 (as amended, supplemented or otherwise modified from time to time, the
"Agreement").
1. Definitions.
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(a) The definition of "REGISTRATION STATEMENT" is hereby amended
by adding the word "shelf" in the first line before "registration
statement."
(b) All terms used herein which are defined in the Agreement and
not otherwise defined or amended herein shall have the meaning attributed
to them in the Agreement.
2. Demand and Shelf Registration. Section 2.2 of the Agreement is
hereby amended and restated in its entirety by inserting the following
language in lieu thereof:
(a) Within one week from the date of this Amendment, the Company
shall file a Registration Statement on Form S-1, Form S-3 (if the
Company is then eligible), or such other similar form as may be
permitted under the Securities Act, covering the number of
Registrable Securities equal to the quotient obtained by dividing
$5,000,000 by the average closing price of the Company's Common
Stock as reported on the Nasdaq National Market on the five
trading days immediately prior to such filing (the "Initial
Shares"); provided, that in the event Audited Financial
Statements are necessary for such filing, such Audited Financial
Statements shall have been delivered to the Company prior to the
time that any filing pursuant to this Section 2.2 shall be
effected. The Company may at any time amend the Registration
Statement to amend the form on which such Registration Statement
has been filed, so long as permitted by applicable federal law.
The Company shall use its commercially reasonable best efforts to
cause the Registration Statement to be declared effective
pursuant to the Securities Act as promptly as practicable
following the filing thereof at approximately 9:00 A.M. (as
determined by the Commission) on a trading day (the period
commencing with the effectiveness of the Registration Statement
on a trading day, or at 8 A.M. on the next succeeding trading day
if the Registration Statement shall be declared effective on a
date that is not a trading day, and ending at the same time on
the next succeeding trading day, shall be referred to herein as
the "Effective Date"), and shall give Holders at least 24 hours
prior notice of the date that the Registration Statement is to be
declared effective. Thereafter, the Company shall use its
reasonable best efforts to keep the Registration Statement
continuously effective in order to permit the prospectus forming
part thereof to be usable by the Holders until February 22, 2001,
or for such shorter period that will terminate when all
Registrable Securities covered by the Registration Statement have
been sold pursuant to the Registration Statement or cease to be
outstanding or otherwise to be Registrable Securities by reason
of subsection (c) hereof (the "Sale Period"). If all of the
securities which may be sold pursuant to Section 2.2(b) shall not
have been sold on or before February 22, 2000, and any Holder
shall have been prohibited from selling any such securities
pursuant to Section 2.4 or Section 2.11, the Sale Period shall be
extended beyond February 22, 2000 by the number of trading days
during which such Holder shall have been prohibited from selling.
If requested in writing by the Holders, the Company agrees, at
its cost, to prepare and file one prospectus supplement to the
Registration Statement; all costs associated with additional
prospectus supplements (not to exceed four without the Company's
consent) shall be paid in full by the Holders requesting such
prospectus supplement.
(b) The Holders (including any persons who obtain Registrable
Securities after the date hereof), on a combined basis, shall be
permitted to sell under the Registration Statement on the
Effective Date, and only on the Effective Date, a number of
Registrable Securities not to exceed the Initial Shares. After
the Effective Date, for the duration of the Sale Period, the
Holders (including any persons who obtain Registrable Securities
after the date hereof) may not sell, on a combined basis, more
than 50,000 Registrable Securities during any one calendar month
(the "Monthly Shares"). Notwithstanding the fact that the
Holders, on a combined basis, do not sell the allotted 50,000
Registrable Securities in any one calendar month, the number of
Monthly Shares for the subsequent calendar month shall not be
increased and the Holders (including any persons who obtain
Registrable Securities after the date hereof) may only sell up to
50,000 Registrable Securities on a combined basis.
Notwithstanding anything to the contrary in this Section 2.2(b),
if a Holder shall be prohibited pursuant to Section 2.4 or
Section 2.11 from selling any securities pursuant to this Section
2.2(b), such Holder shall be permitted to sell an amount of
securities equal to the amount that the Holder would have been
permitted to sell pursuant to Section 2.2(b) but for such
prohibition during the period commencing on the date that such
prohibition terminates and ending such number of trading days
thereafter equal to the number of trading days during which such
prohibition shall have been in effect.
(c) Commencing on the date of the first sale under the Registration
Statement, the Holders shall provide to the Company in writing a
complete and accurate schedule containing the following
information: the number of Registrable Securities sold during the
immediately preceding month and the name of the Person by whom
the Registrable Securities were sold. If the Holders, on a
combined basis, after the Effective Date, sell more than the
Monthly Shares during any particular calendar month (excluding
sales not prohibited by this Agreement of any Common Stock not
registered pursuant to this Section 2.2), (i) this Agreement
shall be null and void and of no further force or effect, (ii)
the Company may cause the Registration Statement to not be
effective and (iii) the Company shall be entitled to other
damages and remedies under applicable law.
(d) The Holders may sell Registrable Securities only in accordance
with the terms of this Amendment or the Agreement.
3. General Provisions Applicable to Demand Registration.
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(a) Section 2.3(c) of the Agreement is hereby amended by
inserting the words "to file or cause to be effective another registration
statement" in the first line immediately after the words "under Section
2.2".
(b) Sections 2.3(f) and 2.3(g) of the Agreement are hereby
deleted in their entirety.
4. Continued Effectiveness of Agreement. The parties hereto hereby
acknowledge and confirm that the Agreement to which they are a party is,
and shall continue to be, in full force and effect and is hereby ratified
and confirmed in all respects except that on and after the date of this
Amendment all references in any related document to "the Agreement",
"thereto", "thereof", "thereunder" or words of like import referring to the
Agreement shall mean the Agreement as amended by this Amendment.
5. Miscellaneous.
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(a) This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
(b) Section and paragraph headings are included for convenience
of reference only and shall not constitute a part of this Amendment for any
other purpose.
IN WITNESS WHEREOF, this Amendment to Registration Rights Agreement
has been signed on behalf of each of the parties hereto as of the date
first written above.
xxxxxxxx.xxx, inc.
By:
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Name:
Title:
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Yale Brozen
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Xxxxxxxx Xxxxxx
