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EXHIBIT 4.37
SECOND AMENDMENT TO
OBSERVATION RIGHTS AGREEMENT
Dated as of August 20, 1997
The Northwestern Mutual Life Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxx Xxxxxxx Mutual Life Insurance Company
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: The Cerplex Group, Inc. --
Senior Subordinated Notes due November 19, 2001 and
Warrants to Purchase Common Stock
Ladies and Gentlemen:
THE CERPLEX GROUP, INC., a Delaware corporation (together with its
successors and assigns, the "Company"), hereby agrees with each of
(A) The Northwestern Mutual Life Insurance Company
(together with its successors, subsidiaries and affiliates,
"Northwestern"), and
(B) Xxxx Xxxxxxx Mutual Life Insurance Company (together
with its successors, subsidiaries and affiliates, "Xxxx Xxxxxxx")
(Northwestern and Xxxx Xxxxxxx are herein referred to, collectively, as the
"Qualified Observers") as follows:
1. RECITALS. The Company and the Qualified Observers entered
into an Observation Rights Agreement dated as of November 19, 1993 (as amended
by a First Amendment to Observation Rights Agreement dated as of April 15, 1996
and as in effect prior to the effectiveness of this Amendment, the "Existing
Observation Rights Agreement"). Pursuant to a First Amendment Agreement dated
as of August 20, 1997 among the Company, the Qualified Observers and certain
other persons, and a Warrant Agreement dated as of August 20, 1997 among the
Company, the Qualified Observers and certain other persons, the Company is
issuing five hundred thousand (500,000) warrants (the "1997 Warrants") to
purchase common stock of the Company to the Qualified Observers and certain
other persons. The Qualified Observers have requested, as additional
consideration for their entering into the aforesaid First Amendment Agreement,
that the Existing Observation Rights Agreement be amended, as more particularly
provided herein, to include the 1997 Warrants being issued to the Qualified
Observers, and the Company has agreed to amend the Existing Observation Rights
Agreement as set forth herein.
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2. AMENDMENTS TO EXISTING OBSERVATION RIGHTS AGREEMENT. Section
1 of the Existing Observation Rights Agreement is hereby amended and restated
in its entirety, as set forth below:
1. BACKGROUND.
(a) The Company entered into separate
Note Purchase Agreements, each dated as of November
19, 1993, with certain purchasers named in Annex 1
thereto, providing for the issuance by the Company
and the purchase by the Purchasers of (1) an
aggregate principal amount of $17,250,000 of the
Company's Series A 9.00% Senior Subordinated Notes
due November 19, 2001 (the "Series A Notes") and (2)
an aggregate principal amount of $5,750,000 of the
Company's Series B 9.00% Senior Subordinated Notes
due November 19, 2001 (the "Series B Notes"). The
Note Purchase Agreements dated as of November 19,
1993 have been amended and restated pursuant to the
terms of separate Amended and Restated Note Purchase
Agreements, each dated as of April 9, 1997 (as may be
amended or restated from time to time, the "Note
Purchase Agreements"), with certain purchasers named
on Annex 1 thereto (collectively, the "Purchasers")
(including, without limitation, Northwestern and Xxxx
Xxxxxxx), pursuant to which the Series A Notes were
amended and restated (such notes, together with any
notes issued in substitution therefor, and as may be
further amended or restated from time to time, are
referred to as the "Notes").
(b) Concurrently with, and in
consideration of, the purchase of the Series B Notes
by the Purchasers, the Company issued to the
Purchasers, pursuant to a Warrant Agreement, dated as
of November 19, 1993 (as may be amended from time to
time, the "1993 Warrant Agreement") among the Company
and the Purchasers, its Warrants (as such term is
defined in the 1993 Warrant Agreement) to purchase
Common Stock, $0.001 par value per share, of the
Company, as represented by certain Warrant
Certificates (as such term is defined in the 1993
Warrant Agreement).
(c) In consideration of the Purchasers
entering into a Waiver and Amendment Agreement dated
as of April 15, 1996 among the Company and the
Purchasers, the Company issued to the Purchasers,
pursuant to a Warrant Agreement, dated as of April
15, 1996 (as may be amended from time to time, the
"1996 Warrant Agreement") among the Company and the
Purchasers, its Warrants (as such term is defined in
the 1996 Warrant Agreement) to purchase Common Stock,
$0.001 par value per share, of the Company, as
represented by certain Warrant Certificates (as such
term is defined in the 1996 Warrant Agreement).
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(d) In consideration of the Purchasers
entering into a First Amendment Agreement dated as of
August 20, 1997 among the Company and the Purchasers,
the Company issued to the Purchasers, pursuant to a
Warrant Agreement, dated as of August 20, 1997 (as
may be amended from time to time, the "1997 Warrant
Agreement") among the Company and the Purchasers, its
Warrants (as such term is defined in the 1997 Warrant
Agreement) to purchase Common Stock, $0.001 par value
per share, of the Company, as represented by certain
Warrant Certificates (as such term is defined in the
1997 Warrant Agreement).
(e) As used herein, the terms "Warrants"
and "Warrant Certificates" shall include all Warrants
and Warrant Certificates, respectively, issued
pursuant to the 1993 Warrant Agreement, the 0000
Xxxxxxx Agreement and the 1997 Warrant Agreement to
the Qualified Observers. Other capitalized terms
used herein without definition shall have the
respective meanings ascribed to them in the Note
Purchase Agreements.
3. MISCELLANEOUS.
(a) GOVERNING LAW. This Amendment shall be governed by
and construed and enforced in accordance with, internal New York law.
(b) DUPLICATE ORIGINALS. Two or more duplicate originals
of this Amendment may be signed by the parties, each of which shall be
an original but all of which together shall constitute one and the
same instrument. This Amendment may be executed in one or more
counterparts and shall be effective when at least one counterpart
shall have been executed by each party hereto, and each set of
counterparts which, collectively, show execution by each party hereto
shall constitute one duplicate original.
(c) EFFECT OF THIS AMENDMENT. Except as specifically
provided in this Amendment, no terms or provisions of the Existing
Observation Rights Agreement have been modified or changed by this
Amendment and the terms and provisions of the Existing Observation
Rights Agreement, as amended hereby, shall continue in full force and
effect. This Amendment and the amendments contained herein shall have
and be in effect on and after the date hereof.
(d) SECTION HEADINGS. The titles of the sections hereof
appear as a matter of convenience only, do not constitute a part of
this Amendment and shall not affect the construction hereof.
[REMAINDER OF PAGE INTENTIONALLY BLANK. NEXT PAGE IS SIGNATURE PAGE.]
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IN WITNESS WHEREOF, each of the undersigned has executed this
Amendment as of the date first written above.
Very truly yours,
THE CERPLEX GROUP, INC.
By:________________________________
Name:
Title:
The foregoing Amendment is hereby
accepted as of the date hereof.
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
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