Exhibit 10.9
AMENDMENT TO THE
FIRST AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
THIS AMENDMENT TO THE FIRST AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
(this "AMENDMENT"), dated as of this 21st day of July, 2000, between WORLDGATE
COMMUNICATIONS, INC., a Delaware corporation (the "Company"), Citicorp
("CITICORP"), Xxx Xxxxxxxxx ("KRISBERGH") and Xxxxx Xxxxxx ("XXXXXX" and
together with Citicorp and Krisbergh, the "Stockholders"). All terms used herein
have the meanings assigned to them in the Stockholders Agreement (as defined
below) unless otherwise defined herein.
W I T N E S S E T H:
WHEREAS, the Company, the Stockholders and certain other persons are
parties to the First Amended and Restated Stockholders Agreement (the
"STOCKHOLDERS AGREEMENT");
WHEREAS, the Founding Stockholders, Citicorp and certain officers of
the Company are the only stockholders of the Company that continue to hold
Registrable Securities;
WHEREAS, the Company intends to file a registration statement (the "MSO
REGISTRATION STATEMENT") on Form S-3 under the Securities Act covering the
registration of the resale of up to 2,000,000 shares of common stock of the
Company issued to each of Adelphia Communications Corporation, Charter
Communications, Inc., Comcast Corporation and Xxx Communications, Inc., or their
respective affiliates (each an "MSO"), pursuant to certain Common Stock Purchase
Agreements between the Company and such MSO;
WHEREAS, the Stockholders desire to waive the "piggyback" registration
rights under Article VII of the Stockholders Agreement in connection with the
MSO Registration Statement; and
WHEREAS, the Stockholders and the Company wish to enter into this
Amendment to amend the Stockholder's Agreement to clarify the registration
rights of the Stockholders.
NOW, THEREFORE, in consideration of the premises herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. WAIVER. In connection with the filing of the MSO Registration
Statement, each Stockholder irrevocably waives the obligation of the Company to:
(a) provide notice, as provided in Section 7.1(a) of the Stockholders
Agreement, to any holder of Registrable Securities; and
(b) register any Registrable Securities held by any holder of
Registrable Securities pursuant to Section 7.1 of the Stockholder's Agreement.
2. MSO REGISTRATION STATEMENT. Notwithstanding any restriction in Section
7.2 or 7.3 of the Stockholder's Agreement to the contrary, the Holders shall not
be precluded from exercising their demand registration rights pursuant to
Section 7.2 or their rights to request registration on Form S-3 pursuant to
Section 7.3 as a result of the filing or effectiveness of the MSO Registration
Statement.
3. AMENDMENT OF STOCKHOLDERS AGREEMENT. Section 7.2(b) of the Stockholders
Agreement is hereby amended in its entirety as set forth below (marked to show
changes from the Stockholders Agreement):
" (b) If any registration pursuant to this SECTION 7.1 is an
underwritten registration, and the managing underwriters advise the
Company in writing that in their opinion the number of Registrable
Securities and other securities requested to be included in such
registration exceeds the
number which can be sold in such offering without adversely affecting the
offering of securities, the Company
shall include in such registration Registrable Securities and such other
securities held by other holders (the "Additional Securities") in the
following order of priority (assuming any such securities are included):
(i) first, the securities the Company proposes to sell, if any, (ii) to
the holder of securities of the Company that requested a demand
registration as to which such underwritten registration applies, if
applicable, and (iii) pro rata among all of the holders of the Registrable
Securities, taken as a whole, and holders of Additional Securities based
on the number of shares proposed to be included therein by such holders.
The number of Registrable Securities held by the Holders shall be further
allocated among the Holders as follows, unless the Holders holding a
majority of the Series A Conversion Stock, Series B Conversion Stock and
Series C Conversion Stock voting together as a class otherwise agree: (i)
first, the Registrable Securities requested to be included therein by each
Holder, PRO RATA among such Holders on the basis of the number of
Registrable Securities held by each such Holder, up to the number of
Registrable Securities that will result in aggregate net proceeds to such
Holder equal to (A) the Original Series A Purchase Price for any Holder
who is a Series A Stockholder, (B) the Original Series B Purchase Price
for any Holder who is a Series B Stockholder and (C) the Original Series C
Purchase Price for any Holder who is a Series C Stockholder; (ii) second,
the Registrable Securities requested to be included therein by each
Management Stockholder, PRO RATA among such Management Stockholders on the
basis of the number of Registrable Securities held by each such Management
Stockholder, up to such number of Registrable Securities that will result
in aggregate net proceeds to such Management Stockholder from all
offerings equal to his proportionate share of the $2,000,000 valuation for
all Management Stockholders' securities; PROVIDED, that in no event shall
the number of Registrable Securities included in the offering by the
Holders and Management Stockholders exceed the number of securities, if
any, that the underwriters determine would not adversely affect the
orderly sale and distribution of the
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securities being sold by the Company for its own account. Any Registrable
Securities that are available for registration after the allocations under
clauses (i) and (ii) of this SECTION 7.1(B) shall be allocated among the
Holders and Management Stockholders requesting registration on a PRO RATA
basis. If the Holders elect not to register the maximum number of
Registrable Securities allocated to them under clause (i) of this SECTION
7.1(B), then excess Registrable Securities not registered by them shall be
allocated to the Management Stockholders on a PRO RATA basis. Similarly,
if the Management Stockholders elect not to register the maximum number of
Registrable Securities allocated to them under clause (ii) of this SECTION
7.1(B), then the excess Registrable Securities not registered by them
shall be allocated to the Holders on a PRO RATA basis."
2. STOCKHOLDER'S AGREEMENT. Except as specifically provided in this
Amendment, Article VII of the Stockholders Agreement shall remain in full force
and effect. All references to the Stockholders Agreement in any other document
or instrument shall be deemed to mean such Stockholders Agreement as amended by
this Amendment. The Company and each holder of Registrable Securities shall be
bound by the terms and obligations of Article VII of the Stockholders Agreement,
as amended by this Agreement, as through the terms and obligations of Article
VII of the Stockholders Agreement is set forth herein.
3. COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
shall constitute one and the same agreement. For purposes of this Amendment, a
facsimile of an executed counterpart shall constitute an original.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
undersigned have executed this Amendment as of the day and year first above
written.
WORLDGATE COMMUNICATIONS, INC.
By: /s/
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Name:
Title:
CITICORP
By: /s/
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Name:
Title:
/s/ Xxx Xxxxxxxxx
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XXX XXXXXXXXX
/s/ Xxxxx Xxxxxx
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XXXXX XXXXXX
