EXHIBIT 10.2
AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1 (this "Amendment") to the Registration Rights
Agreement dated as of March 30, 2001 (the "Registration Rights Agreement") among
Xxxxxx Technologies, Inc. a Delaware corporation (the "Company"), the Purchasers
signatory thereto (each a "Purchaser" and collectively, the "Purchasers"), and
Xxxxxxxxx Xxxxxxxx, Inc., a Pennsylvania corporation (the "Placement Agent"),
made effective as of this __ day of May, 2003 (the "Effective Date"), is entered
into by and among (i) the Company, and (ii) the Purchasers signatory hereto.
RECITALS
A. The Company, the Placement Agent, and the Purchasers entered into
the Registration Rights Agreement in connection with the purchase by the
Purchasers of securities issued by the Company.
B. Subsequent to entering into the Registration Rights Agreement, the
Placement Agent ceased doing business and is no longer in existence.
C. Pursuant to Section 2.a. of the Registration Rights Agreement, the
Company filed a Registration Statement on Form S-3 (Registration Statement No.
333-60884) which was declared effective by the Securities and Exchange
Commission (the "SEC") in September 2001 and which remains effective as of the
date hereof (such Registration Statement, as amended at the time declared
effective by the SEC is referred to herein as the "S-3 Registration Statement"),
registering the resale from time to time pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), of up to an aggregate
of 56,192,841 shares of the Company's Common Stock by the selling shareholders
(including the Purchasers pursuant to the Registration Rights Agreement)
identified and in such amounts, as provided in the S-3 Registration Statement
under the heading "Selling Stockholders."
D. Section 10 of the Registration Rights Agreement provides that such
agreement may be amended by the holders of at least two-thirds (2/3) of the
Registrable Securities.
E. The Company's Common Stock was delisted from the Nasdaq Small Cap
Market effective with the commencement of trading on December 31, 2002 (the
"Delisting"), and since such time the Company's Common Stock has been quoted on
the Over-the-Counter Bulletin Board.
F. As a result of the Delisting, the Company is no longer permitted to
satisfy its obligation to amend the S-3 Registration Statement from time to time
by incorporating by reference into the prospectus of such S-3 Registration
Statement all documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
G. As a further result of the Delisting, it would be highly
impracticable, and an inefficient use of the Company's financial and other
resources, for the Company to make the required filings with the SEC of
post-effective amendments to the S-3 Registration Statement as would be
necessary to continue to keep such S-3 Registration Statement updated and
effective.
H. As soon as practicable following the Effective Date, the Company
intends to take any and all necessary actions to deregister the Common Stock
registered for sale from time to time under the S-3 Registration Statement,
including but not limited to the filing of a post-effective amendment to the S-3
Registration Statement for such purpose.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and each
of the Purchasers hereby agree as follows:
1. Section 2.d. of the Registration Rights Agreement shall be amended
and restated in its entirety as follows:
2.d. Ineligibility for Form S-3. In the event that Form S-3
is not available for any registration of Registrable Securities
hereunder, the Company shall (i) register the sale of the Registrable
Securities on another appropriate form that is reasonably acceptable
to the holders of a majority of the Registrable Securities (with the
holders of Series F Preferred Stock and/or Warrants consenting on an
as converted and as exercised basis) and (ii) undertake to register
the Registrable Securities on Form S-3 as soon as such form is
available; provided, however, the Company shall not be required to
file a Registration Statement pursuant to Rule 415 or any successor
rule providing for the offering of securities on a continuous or
delayed basis on any form that does not provide for incorporation by
reference into the prospectus of such Registration Statement of all
documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prior to the termination of the
offering.
2. The first paragraph of Section 4. of the Registration Rights
Agreement shall be amended and restated in its entirety as follows:
4. Company Obligations. Subject to Section 4.q., at such
time as the Company is obligated to file a Registration Statement with
the SEC pursuant to Section 2, the Company will use its best efforts
to effect the registration of the Registrable Securities in accordance
with the intended method of disposition thereof and, pursuant thereto,
the Company shall have the following obligations:
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3. There shall be a new Section 4.q. added to the Registration Rights
Agreement as follows:
4.q. With respect to any Registration Statement providing
for the offering of securities on a continuous or delayed basis under
Rule 415 or any successor rule, the Company shall not be obligated
under any provision of this Registration Rights Agreement, to (i) file
any Registration Statement, (ii) amend any Registration Statement
(including the filing of any pre-effective or post-effective
amendment), or (iii) otherwise keep any Registration Statement
effective, at any time that it is no longer eligible to keep such
Registration Statement effective (including any post-effective
amendment) through the use of a form providing for incorporation by
reference into the prospectus of such Registration Statement of all
documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
termination of the offering.
4. Section 11.b. of the Registration Rights Agreement shall be amended
as follows solely with respect to the address and facsimile number for
communications to be provided to the Company under the Registration Rights
Agreement:
If to the Company:
XXXXXX TECHNOLOGIES, INC.
000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: General Counsel
With copies to:
XXXXXXXXXXX & XXXXXXXX LLP
Xxxxx X. Xxxxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxx, Esq.
5. Waiver. Each Purchaser hereby acknowledges and consents to the
taking by the Company of any and all actions for the purpose of deregistering
the Common Stock registered for sale under the S-3 Registration Statement, and
hereby waives any and all rights that it may have solely with respect to such
S-3 Registration Statement under the Registration Rights Agreement.
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6. Effectiveness. Pursuant to and in accordance with Section 10 of the
Registration Rights Agreement, this Amendment shall become effective, and shall
be binding upon all Purchasers, as of the Effective Date, upon the execution and
delivery to the Company of signatures to this Amendment by holders of at least
two-thirds (2/3) of the Registrable Securities.
7. Counterparts. This Amendment may be executed in one or more
counterparts by any party hereto in separate counterparts, each of which when so
executed and delivered to the Company shall be deemed an original. All such
counterparts together shall constitute one and the same instrument.
8. Definitions. Capitalized terms used in this Amendment but not
otherwise defined shall have the respective meanings set forth in the
Registration Rights Agreement.
9. No Other Waiver or Amendment. This Amendment shall not, except as
expressly set forth above, serve to waive, supplement, amend or otherwise modify
the Registration Rights Agreement, which Registration Rights Agreement shall
remain in full force and effect as amended hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the day and year first above written.
COMPANY:
XXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxxx Quick
-------------------------------------
Name: Xxxxxx Quick
Title: President and Chief Executive
Officer
[PURCHASERS' SIGNATURES BEGIN ON NEXT PAGE]
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PURCHASERS:
HARBOURVEST PARTNERS VI -
DIRECT FUND L.P.
By: HVP VI - DIRECT ASSOCIATES, L.L.C.
Its: General Partner
By: HARBOURVEST PARTNERS, LLC
Its: General Partner
By: /s/ Xxxx Xxxx
Managing Director
[SIGNATURES CONTINUED ON NEXT PAGE]
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SAIC VENTURE CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
[SIGNATURES CONTINUED ON NEXT PAGE]
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ST. XXXX VENTURE CAPITAL VI, LLC
By: SPVC MANAGEMENT VI, LLC
Its: Managing Member
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
[SIGNATURES CONTINUED ON NEXT PAGE]
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ABS VENTURES IV, L.P.
By: XXXXXXX CAPITAL, LLC
Its: General Partner
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
ABX FUND, L.P.
By: XXXXXXX CAPITAL II, LLC
Its: General Partner
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
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