Exhibit 4.8
AMENDMENTS TO THE REGISTRATION RIGHTS AGREEMENT
(i) Section 1(a) of the Registration Rights Agreement shall be amended by
adding a new paragraph, immediately following the first paragraph, as follows:
The Company is also a party to an Investment Agreement, dated as of
March 30, 1999, with the Purchaser (the "1999 INVESTMENT AGREEMENT"),
pursuant to which the Company agreed, in exchange for consideration of
$51 million in cash (I) to issue to Purchaser up to 73,350 newly
issued shares of Series A Non-Voting Participating Convertible
Preferred Stock, par value $.001 per share (the "PREFERRED SHARES"),
of the Company having the terms set forth in Exhibit I of the 1999
Investment Agreement, (II) to amend and restate the Warrants as set
forth in Exhibit II of the 1999 Investment Agreement, and (III) to
amend and restate the Special Warrants as set forth in Exhibit III of
the 1999 Investment Agreement.
(ii) Section 1(b) of the Registration Rights Agreement shall be restated in
its entirety as follows:
(b) This Agreement shall become effective with respect to
any Registrable Securities upon the issuance or sale of Registrable
Securities pursuant to the Investment Agreement or the 1999 Investment
Agreement. This Agreement shall remain in effect upon the assignment
or transfer of Registrable Securities by the Purchaser or a Holder to
an Affiliate, a Distributee or other successors, assigns and
transferees of Purchaser of such Holder pursuant to Section 4.4.
(iii) Section 2 of the Registration Rights Agreement shall be amended by
restating the definition of "Registrable Securities" in its entirety as
follows:
"REGISTRABLE SECURITIES" means (a) the Shares, (b) the Additional
Shares, (c) the Warrant Shares, (d) the Warrants, (e) the Special
Warrant Shares, (f) the Special Warrants, (g) the Preferred Shares,
(h) the Conversion Shares and (i) any securities issued or issuable
with respect to any Shares, Additional Shares, Warrants, Special
Warrants, Preferred Shares or Conversion Shares referred to in the
foregoing clauses (a) through (h), (i) upon any conversion or exchange
thereof, (ii) by way of stock dividend or other distribution, stock
split or reverse stock split or (iii) in connection with a combination
of shares, recapitalization, merger, consolidation, exchange offer or
other reorganization. As to any particular Registrable Securities,
once issued such securities shall cease to be Registrable Securities
when (A) a Registration Statement with respect to the sale of such
securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such
Registration Statement, (B) such securities shall have been
distributed to the public in reliance upon Rule 144, (C) subject to
the provi-
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sions of Section 4.1(b)(ii), such securities shall have been
otherwise transferred, new certificates for such securities not
bearing a legend restricting further transfer shall have been
delivered by the Company and subsequent disposition of such securities
shall not require registration or qualification of such securities
under the Securities Act or any similar state law then in force or (D)
such securities shall have been acquired by the Company. In
determining the number of Registrable Securities outstanding at any
time or whether the Holders of the requisite number of Registrable
Securities have taken any action hereunder and in calculating the
number of Registrable Securities for all other purposes under this
Agreement, each Warrant and Special Warrant shall be deemed to have
been exercised (to the fullest extent then determinable) and each
Preferred Share shall be deemed to have been converted and such
calculation shall include the number of Warrant Shares and Special
Warrant Shares then deliverable upon the exercise of such Warrant or
Special Warrant and the number of Conversion Shares deliverable upon
conversion of the Preferred Shares (to the fullest extent then
determinable).
(iv) Section 2 of the Registration Rights Agreement shall be amended by
inserting, immediately following the definition of "Contingent Stock", a new
definition as follows:
"CONVERSION SHARES" means the shares of Common Stock issuable
upon conversion of the Preferred Shares.
(v) Section 2 of the Registration Rights Agreement shall be amended by
inserting, immediately following the definition of "Postponement Period", a new
definition as follows:
"PREFERRED SHARES" is defined in Section 1(a).
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(vi) Section 2 of the Registration Rights Agreement shall be amended by
restating the definition of "Special Warrants" as follows:
"SPECIAL WARRANTS" means warrants entitling the holder thereof to
purchase shares of Common Stock on the terms and subject to the
conditions set forth in Exhibit 1 of the Investment Agreement, and any
warrants of the Company received in exchange therefor, pursuant to the
1999 Investment Agreement or otherwise.
(vii) Section 2 of the Registration Rights Agreement shall be amended by
restating the definition of "Warrants" as follows:
"WARRANTS" means warrants entitling the holder thereof to
purchase one share of Common Stock for each Share and Special Warrant
purchased by the Purchaser pursuant to the Investment Agreement, on
the terms and subject to the conditions set forth in Exhibit 2
thereof, and any warrants of the Company received in exchange
therefor, pursuant to the 1999 Investment Agreement or otherwise.
(viii) Paragraph (a) of Section 3.1 of the Registration Rights Agreement
shall be restated in its entirety as follows:
(A) REQUESTS. Subject to the provisions of Section 3.6, at any
time or from time to time as of the date hereof, Holders of not less
than 25% of the then outstanding Registrable Securities shall have the
right to make written requests that the Company effect up to six
registrations under the Securities Act of all or part of the
Registrable Securities of the Holders making such request, which
requests shall specify the intended method of disposition thereof by
such Holders, including whether the registration requested is for an
underwritten offering. For a registration to be underwritten, a
majority of the Holders requesting registration (as measured by
ownership of Registrable Securities) must so request. The Company
shall not be required to effect more than [six] registrations under
this Section 3.1.
(ix) Clause C of Section 3.1(f)(iii) of the Registration Rights Agreement
shall be restated in its entirety as follows:
(C) third, to the extent that the number of shares registered
pursuant to clauses (A) and (B) is less than the largest number that
can be sold in an orderly manner in such offering within a price range
acceptable to the selling Holders, the securities requested to be
included by any other holders (if permitted by the Holders pursuant to
Section 3.1(f)(ii)).
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