Amendment No. 2 to
Registration Rights Agreement - IV
This Amendment No. 2 (this "Amendment") to Registration Rights Agreement -
IV is made and entered into as of June 16, 1998 by and among MIM Corporation, a
Delaware corporation (the "Company"), E. Xxxxx Xxxxxxx ("Xxxxxxx"), Xxxx X.
Xxxxx ("Xxxxx"), Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxxx X. Xxxxxxx
("Xxxxxxx"), Xxxxx X. Xxxxxxx, The Xxxxxxx Irrevocable Trust - 1992, The Xxxxxxx
Family Trust - 1994 and The Xxxxxxxx Family Trust - 1994.
RECITALS
WHEREAS, certain of the parties hereto entered into a Registration Rights
Agreement - IV on July 31, 1996, as amended by Amendment No. 1 thereto dated
August 12, 1996 (the "Original Agreement");
WHEREAS, the Company and Xxxxxxx entered into a Separation Agreement on
March 31, 1998 (the "Separation Agreement"), which purported to amend the
Original Agreement in certain respects;
WHEREAS, the parties hereto desire to amend the Original Agreement through
this Amendment to reflect the revisions contemplated by the Separation
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. All capitalized terms used herein without definition shall have the
meaning ascribed to such terms in the Original Agreement. All
references to the "Agreement" in the Original Agreement shall
hereafter be deemed to mean the Original Agreement as amended by this
Amendment.
2. Section 2(a) of the Original Agreement is hereby amended to provide
that (i) the provision limiting the Company's obligation to effect
more than two Demand Registrations under the Agreement shall not
include the demand by Xxxxxxx under Section 10(a) of the Separation
Agreement to register 2,323,052 (or such lesser number as Xxxxxxx may
elect) shares of the Company's Common Stock (the "Xxxxxxx Demand
Registration") such that the Company may still be required to effect
two Demand Registrations under the Agreement, (ii) the provision
limiting the Company's obligation to register less than 2,000,000
shares of Registrable Securities pursuant to a Demand Registration
under the Agreement is modified such that the Company shall not be
required to register less than 1,000,000 shares of Registrable
Securities pursuant to a Demand Registration under the Agreement; and
(iii) the number of Registrable Securities required for Holders to
request registration under Section 2(a) shall be decreased from
2,250,000 to 1,000,000.
3. With respect to the Xxxxxxx Demand Registration, the parties hereto
(other than Xxxxxxx) confirm their respective waiver of any right to
include his or its Registrable Securities in the Xxxxxxx Demand
Registration pursuant to Section 2(a) of the Original Agreement.
4. With respect to Xxxxxxx Shares and Holdings Shares only, subclause
(iii) of the proviso set forth in the definition of the term
"Registrable Securities" is hereby amended as follows: at the end of
subclause (iii) following the word "sale" and immediately preceding
the word "or" add the following:
"and Xxxxxxx (together with any affiliates) beneficially owns an
aggregate of less than 10% of the Company's then outstanding shares of
Common Stock."
5. Section 2(b) of the Original Agreement is hereby amended to provide
that it shall not be applicable to the Xxxxxxx Demand Registration.
Nothing contained herein shall (i) be construed as a waiver of the
Company's rights or the Holders' obligations under Section 2(b) of the
Original Agreement for any
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purposes other than the Xxxxxxx Demand Registration or (ii) otherwise
limit the Company's ability to enforce the provisions of Section 2(b)
against any Holder other than with respect to the Xxxxxxx Demand
Registration.
6. Section 2(c) of the Original Agreement is hereby amended to provide
that with respect to the Xxxxxxx Demand Registration and any future
Demand Registration pursuant to the Agreement which includes Xxxxxxx
Shares or Xxxxxxx Option Shares, the Company shall be required to use
its best efforts to cause the registration statement covering such
Registrable Securities to remain effective for the lesser of 24 months
or until such Registrable Securities of Xxxxxxx have been sold.
7. Each of the following persons hereby (i) acknowledges the assignment
to such person of the number of Holdings Shares listed opposite such
person's name below and that such person has thereby become a Holder
under the Original Agreement and (ii) agrees to be bound by the
obligations imposed upon Holders under the Original Agreement:
E. Xxxxx Xxxxxxx 672,106 shares
Xxxxx X. Xxxxxxx 672,106 shares
The Xxxxxxx Irrevocable Trust - 1992 704,760 shares
The Xxxxxxx Family Trust - 1994 195,782 shares
The Xxxxxxxx Family Trust - 1994 78,299 shares
----------------
2,323,053 shares
For purposes of the Agreement, "Holdings Shares" shall hereafter mean
the above-listed shares held by the above-listed persons or their
successors and permitted assigns.
8. Except as modified hereby, the Original Agreement shall remain
unmodified and in full force and effect.
9. This Amendment may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Amendment and all
of which, when taken together, will be deemed to constitute one and
the same Amendment.
10. This Amendment shall be construed in accordance with, and its
interpretation shall be governed by, the laws of the State of
Delaware, without giving effect to otherwise applicable principles of
conflicts of law.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned parties hereby execute this Amendment
as of the 16th day of June 1998.
/s/ E. XXXXX XXXXXXX
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E. Xxxxx Xxxxxxx
/S/ XXXX X. XXXXX
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Xxxx X. Xxxxx
/S/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
/S/ XXXXXX X. XXXXXXX
------------------------------------
Xxxxxx X. Xxxxxxx
/S/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
The Xxxxxxx Irrevocable Trust - 1992
By: /S/ XXXXXX XXXXXXX
--------------------------------
Xxxxxx Xxxxxxx, Trustee
The Xxxxxxx Family Trust - 1994
By: /S/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx, Trustee
The Xxxxxxxx Family Trust - 1994
By: /S/ XXXXX X. XXXXXXX
--------------------------------
Xxxxx X. Xxxxxxx, Trustee
MIM Corporation
By: /S/ XXXXX X. XXXXXX
--------------------------------
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