EXHIBIT 10.4
AMENDMENT NO. 1 TO
THE COMMON STOCK INVESTMENT AGREEMENT
AND THE REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1 (this "Amendment") to both the COMMON STOCK
INVESTMENT AGREEMENT and the REGISTRATION RIGHTS AGREEMENT by and between JUNO
ONLINE SERVICES, INC., a Delaware corporation ("Juno") and THE KINGSTON LIMITED
PARTNERSHIP, a Bermuda limited partnership ("Kingston"), dated as of October 6,
2000 (collectively the "Agreements"), is made and entered into as of March 29,
2001, by and between Juno and Kingston. Any capitalized terms not defined herein
shall have the meaning given them in the Agreements.
WHEREAS, Juno entered into the Agreements with Westgate International,
L.P., a Cayman Islands exempted company ("Westgate"); and
WHEREAS, Westgate assigned all of its rights and obligations under the
Agreements to Kingston and Kingston accepted such assignment pursuant to an
Assignment and Assumption Agreement between Westgate and Kingston dated as of
November 20, 2000; and
WHEREAS, Juno and Kingston desire to amend and modify the Agreements as
set forth below, to become effective upon the date hereof;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged,
Kingston and Juno agree as follows:
1. COMMON STOCK INVESTMENT AGREEMENT. The Common Stock Investment
Agreement is amended as follows:
a. The definition of "Floor Price" in Section 1 of the Agreement is
hereby deleted in its entirety and replaced with the following:
""Floor Price" shall mean $1.50."
b. Section 2(g)(vi) is hereby deleted in its entirety and replaced
with the following:
"a number of shares of Common Stock equal to at least 5,000,000 (or,
if less, the greatest number of shares of Common Stock that the
Company is then permitted to register pursuant to the 1933 Act and
the rules and regulations promulgated thereunder) shall have been
duly authorized and reserved for issuance with respect to the
applicable Purchase Period and shall be available for sale under the
Registration Statement, and"
2. REGISTRATION RIGHTS AGREEMENT. The Registration Rights Agreement is
amended as follows:
The last sentence of Section 2(a) is hereby amended by deleting the
number "3,000,000" therein and replacing it with the number
"5,000,000."
3. EFFECT OF AMENDMENT. Except as expressly set forth herein, the
Agreements shall continue in full force and effect in accordance with its terms
as originally written, and shall constitute the legal, valid, enforceable and
binding obligations of Juno and Kingston. Juno and Kingston do hereby reaffirm
and ratify the Agreements, as amended.
4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE STATE OF
NEW YORK, CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED
HEREBY OR DISCUSSED HEREIN, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO
ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT,
ACTION OR PROCEEDING IS IMPROPER. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO
LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. IF
ANY PROVISION OF THIS AMENDMENT SHALL BE INVALID OR UNENFORCEABLE IN ANY
JURISDICTION, SUCH INVALIDITY OR UNENFORCEABILITY SHALL NOT AFFECT THE VALIDITY
OR ENFORCEABILITY OF THE REMAINDER OF THIS AMENDMENT IN THAT JURISDICTION OR THE
VALIDITY OR ENFORCEABILITY OF ANY PROVISION OF THIS AMENDMENT IN ANY OTHER
JURISDICTION. EACH PARTY HERETO IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY.
5. COUNTERPARTS. This Amendment may be executed concurrently in two (2)
counterparts and by facsimile signatures, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
the Agreements to be duly executed as of the date and year first above written.
JUNO ONLINE SERVICES, INC. THE KINGSTON LIMITED PARTNERSHIP
By: /s/ Xxxxxxx Xxxxx By: Kingston Associates Ltd,
------------------------------------ General Partner
Name: Xxxxxxx Xxxxx
Title: President & Chief Executive By: /s/ Xxxxxx Xxxxxx
Officer -------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
