Exhibit 99.3
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this "First
Amendment") is made this 25th day of September, 2005, by and between XXXXXX
TECHNOLOGIES, INC., a Delaware corporation ("Xxxxxx" or the "Company"), Xxxxxxx
Xxxxxx, an individual resident of New York, New York ("Xxxxxx") and GREYSTONE
FUNDING CORPORATION, a Virginia corporation ("Greystone") and their permitted
designees (individually, a "Holder" and, collectively, the "Holders"). All
capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to such terms in the Original Agreement (as defined
below).
WHEREAS, the Company and DVI Financial Services, Inc. ("DVI")
entered into a Registration Rights Agreement, dated as of March 15, 2000 (the
"Original Agreement");
WHEREAS, on or about Xxxxxxxxx 0, 0000, XXX assigned to Greystone
the securities to which the Original Agreement relates and Greystone reassigned
a portion of such securities to Xxxxxx, whereby Greystone and Xxxxxx became
successors to DVI under the Original Agreement;
WHEREAS, the Company and Greystone entered into a Registration
Rights Agreement, dated as of December 27, 1999 (the "Greystone Registration
Agreement"), in respect of certain securities held by Greystone (the "Greystone
Securities");
WHEREAS, on December 27, 1999, Greystone assigned a portion of the
Greystone Securities to Xxxxxx, whereby Xxxxxx became a party to the Greystone
Registration Agreement;
WHEREAS, the Company is entering into an Exchange Agreement (the
"Exchange Agreement") with Sirona Holdings Luxco S.C.A, a societe en commandite
par actions, organized under the laws of the Grand Duchy of Luxembourg
("Luxco"), and Xxxxx 00-000 XxxX, a corporation organized under the laws of the
Federal Republic of Germany and to be renamed Sirona Holding GmbH ("Sirona"),
regarding the business combination of the Company and Sirona;
WHEREAS, in connection with the transactions (the "Exchange
Transactions") contemplated by the Exchange Agreement, the Company will enter
into a Registration Agreement (the "Luxco Registration Agreement") with Luxco
to, among other things, grant Luxco registration rights in respect of the
securities of the Company (the "Luxco Securities") to be issued to Luxco in the
Exchange Transactions; and
WHEREAS, the parties to this Agreement wish to amend certain
provisions of the Original Agreement to reflect, among other things, the
registration rights granted to Luxco in the Luxco Registration Agreement and to
harmonize the provisions of the Original Agreement, the Greystone Registration
Agreement and the Luxco Registration Agreement.
NOW, THEREFORE, it is agreed:
1. The defined terms in the recitals of this First Amendment shall
be added to Section 1.1 "Definitions" of the Original Agreement.
2. Section 2.1(b) of the Original Agreement shall be amended and
restated as follows:
"(b) If the registration under this Section 2.1 (a "Piggyback
Registration") is for a registered Public Offering involving an underwriting,
the Company shall so advise the Holder as a part of the written notice given
pursuant to subsection 2.1(a)(i). In such event, the right of the Holder to
registration pursuant to this Section 2.1 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. Should
the Holder propose to distribute his securities through such underwriting, he
shall (together with the Company and the other Holders distributing their
securities through such underwriting) enter into an underwriting agreement in a
form agreed upon between the Company and the underwriter or underwriters
selected for such underwriting by the Company. If the Holder disapproves of the
terms of any such underwriting, he may elect to withdraw therefrom by written
notice to the Company and the managing underwriter. Any Registrable Securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration. Notwithstanding any other provision of this Section 2.1, if a
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
number of Registrable Securities to be included in the registration and
underwriting. The Company shall so advise the Holder and the other holders
distributing their securities through such underwriting pursuant to piggyback
registration rights, and the number of shares of Registrable Securities and
other securities that may be included in the registration and underwriting shall
be allocated among the Holder and other holders as follows:
(i) Primary Registrations. If the Piggyback Registration is an
underwritten primary registration on behalf of the Company, the Company shall
include in such registration (i) first, the securities the Company proposes to
sell, (ii) second, the Registrable Securities, the Luxco Securities and the
Greystone Securities requested to be included in such registration, pro rata
among the holders on the basis of the number of shares owned by each such
holder, and (iii) third, other securities requested to be included in such
registration.
(ii) Secondary Registrations. If the Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities, then the Company shall include in such registration (i) first, the
securities (other than Registrable Securities, Luxco Securities and Greystone
Securities) requested to be included therein by the holders requesting such
registration pursuant to demand registration rights, (ii) second, the
Registrable Securities, the Luxco Securities and the Greystone Securities
requested to be included in such registration, pro rata among the holders of
Registrable Securities, Luxco Securities and Greystone Securities on the basis
of the number of shares owned by each such holder, and (iii) third, other
securities requested to be included in such registration pursuant to piggyback
registration rights or otherwise."
3. Section 2.1(c) of the Original Agreement shall be amended and
restated as follows:
"(c) (i) Subject to subsection 2.1(c)(ii) below, all expenses, other
than underwriting discounts and commissions, incident to the Company's
performance of or compliance with this Agreement, including all registration,
qualification and filing fees, fees and expenses of compliance with securities
or blue sky laws, printing expenses, messenger and delivery expenses, fees and
disbursements of custodians, and fees and disbursements of counsel for the
Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other persons retained by the Company
(all such expenses being herein called "Registration Expenses"), shall be borne
as provided in this Agreement, except that the Company shall, in any event, pay
its internal expenses (including all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or on
the NASD automated quotation system.
(ii) In connection with each Piggyback Registration, the
Company shall reimburse the holders of all securities included in such
registration for the reasonable fees and disbursements of one counsel chosen
collectively by such holders.
(iii) To the extent Registration Expenses are not required to
be paid by the Company, each holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the registration of
such holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
4. The following section shall be added after the end of Section 2.4
of the Original Agreement:
"2.5 Holdback. No holder of Registrable Securities shall
effect any public sale or distribution (including a sale pursuant to Rule 144
under the Securities Act) of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to, and the 180-day period beginning on the effective date of,
any underwritten Public Offering in which Registrable Securities are included
(except as part of such underwritten Public Offering), unless the underwriters
managing the Public Offering otherwise agree."
5. The following sentence shall be added at the end of Section 4.1
of the Original Agreement:
"Notwithstanding the foregoing, no rights under this Agreement
shall be assigned to any Holder that is a tax-exempt organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended."
6. The following section shall be added after the end of Section
4.2(b) of the Original Agreement:
"(c) The Company shall not amend, waive or modify the terms
and conditions of Section 1(d), 2(c) or 2(d) of the Luxco Registration Agreement
or the Greystone Registration Agreement without the prior written consent of the
holders of a majority of the Registrable Securities."
7. This First Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provisions of the
Original Agreement. The amendments set forth in Sections 2, 3, 4 and 6 hereof
shall be effective on and after the date of the Luxco Registration Agreement and
shall cease to be effective in the event of the termination of the Exchange
Agreement.
8. This First Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
9. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first above written.
XXXXXX TECHNOLOGIES, INC.
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By: Xxx Xxxxxx
Title: Secretary and General Council
GREYSTONE FUNDING CORPORATION
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By: Xxxxxxx Xxxxxxxxx
Title: President
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Xxxxxxx Xxxxxx
