EXHIBIT 10.24.1
FIRST AMENDMENT TO MASTER REGISTRATION RIGHTS AGREEMENT
This FIRST AMENDMENT TO MASTER REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made and entered into as of October 26, 1997, by and among
Virtual Mortgage Network, Inc. (the "Company") and the investors (the
"Investors") whose names and addresses are set forth on the signature pages to
that certain Master Registration Rights Agreement, effective as of September 9,
1996, by and among the Company and the Investors (the "Master Registration
Rights Agreement"). Unless otherwise defined herein, all capitalized terms used
herein have the meanings given to such terms in the Master Registration Rights
Agreement.
WHEREAS, the Company is preparing to undertake an initial public
offering ("IPO") of common stock of the Company, or the common stock of any
entity into which the Company is merged in connection with the reincorporation
of the Company (any such common stock so offered being the "Common Stock"); and
WHEREAS, as a condition to the IPO, the underwriters of the IPO have
requested that the Company and the Investors enter into this Amendment in order
to provide an orderly market for the Common Stock after the IPO;
NOW, THEREFORE, in consideration of the execution of an underwriting
agreement by such underwriters and the Company, the public market for the Common
Stock that will be created by the IPO and the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Investors
hereby agree as follows:
1. AMENDMENT TO MASTER REGISTRATION RIGHTS AGREEMENT. The Company
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and the Investors hereby agree to amend and restate Section 13 of the Master
Registration Rights Agreement in its entirety to read as follows:
"13. "MARKET STAND-OFF" AGREEMENT.
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(a) Proposed Public Offering. The Holders understand that
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various underwriters (the "UNDERWRITERS"), which may include Barington
Capital Group, L.P. and Value Investing Partners, Inc., propose to enter
into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with the
Company providing for the purchase by the Underwriters of shares (the
"SHARES") of Common Stock and that the Underwriters propose to offer the
Shares to the public. The Holders further understand that the proposed sale
of such Shares is the subject of a Registration Statement on Form S-1 which
has been filed with the Securities and Exchange Commission and which will
include a form of preliminary prospectus to be used in offering such Shares
to the public.
The Holders hereby irrevocably agree that without the prior
written consent of Barington Capital Group, L.P., on behalf of the
Underwriters, or any other lead underwriter the Company elects to use in
lieu thereof ("BARINGTON"), which consent may be withheld in Barington's
sole discretion, the Holders will not offer to sell, contract to sell,
sell, distribute, grant any option to purchase, pledge, hypothecate, or
otherwise dispose of, directly or indirectly, any shares of Common Stock,
or any securities convertible into, or exercisable or exchangeable for,
shares of Common Stock, or any securities into which shares of the
Company's Common Stock are converted in connection with any reincorporation
merger or any securities convertible into or exerciseable or exchangeable
for any such securities, for a period of 24 months after the date of the
final prospectus relating to the offering of the Shares to the public by
the Underwriters ("FINAL PROSPECTUS") except for the exercise by the
Holders of outstanding options granted by the Company or pursuant to any
options granted or to be granted pursuant to employee stock option plans
(but not the sale, distribution, pledge, hypothecation or other disposition
of Common Stock received upon such exercise). After such period, any such
securities owned by a Holder may be sold without restriction hereunder,
subject to applicable securities laws and regulations. Notwithstanding the
foregoing, (i) each Holder may sell shares of any such securities
commencing 12 months after the date of the Final Prospectus in the event
the closing price of the Common Stock on NASDAQ has been at least 200% of
the initial public offering price per share of Common Stock for a period of
20 consecutive trading days ending within five days of such sale, and such
sale is completed at a price in excess of 200% of the initial public
offering price per share of Common Stock, or (ii) each Holder may sell up
to 50% of any such securities commencing 18 months after the date of the
Final Prospectus, without regard to the market price of the Common Stock.
The Holders agree that, without the prior written consent of
Barington, they will not, during the period commencing on the date hereof
and ending 24 months after the date of the Final Prospectus, make any
demand for or exercise any right with respect to, the registration of any
shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock, or any securities into which shares of the
Company's Common Stock are converted in connection with any reincorporation
merger or any securities convertible into or exerciseable or exchangeable
for any such securities. It is understood that if the Underwriting
Agreement does not become effective prior to April 1, 1998, or if the
Underwriting Agreement (other than the provisions thereof which survive
termination) shall terminate or be terminated prior to payment for and
delivery of the Shares, the Holders' obligations under this Section 13(a)
shall terminate.
(b) Subsequent Offerings. The Holders hereby further agree that
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following the completion of the offering contemplated in Section 13(a) or
the termination of the restrictions under Section 13(a), the Holders shall
not, to the
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extent requested by the Company and an underwriter of Common Stock (or
other securities), sell or otherwise transfer or further dispose of any
shares of Common Stock, or any securities convertible into or exercisable
for, shares of Common Stock, or any securities into which shares of the
Company's Common Stock are converted in connection with any reincorporation
merger or any securities convertible into or exerciseable or exchangeable
for any such securities, in a market transaction during the 180-day period
following the effective date of a registration statement of the Company
filed under the Securities Act of 1933, as amended.
(c) Enforcement. In order to enforce the foregoing covenant,
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the Company may impose stop-transfer instructions with respect to the
applicable securities of each Holder (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such
24-month or 180-day period, as applicable."
2. APPROVAL.
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The undersigned approves the assignment of this Agreement by the
Company to a successor corporation by operation of law in connection with the
reincorporation of the Company in Delaware. The undersigned hereby approves the
Company's Registration Statement on Form S-1 in substantially the form filed by
the Company with the Securities and Exchange Commission on October 21, 1997 and
the registration of the shares of Common Stock thereunder.
3. EFFECT OF AMENDMENT.
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Except as amended pursuant to the terms of this Agreement, the terms
and conditions of the Master Registration Rights Agreement shall remain
unmodified and in full force and effect.
4. GOVERNING LAW.
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This Agreement shall be governed by, interpreted under, and construed
and enforced in accordance with the internal laws, and not the laws pertaining
to conflicts or choice of laws, of the State of Delaware applicable to
agreements made and to be performed wholly within the State of Delaware.
5. COUNTERPARTS.
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This Agreement may be executed in separate counterparts, each of which
shall be deemed to be an original, and when executed, separately or together,
shall constitute a single original instrument, effective in the same manner as
if the parties hereto had executed one and the same instrument.
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6. SEVERABILITY.
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The provisions of this Agreement are severable. The invalidity, in
whole or in part, of any provision of this Agreement shall not affect the
validity or enforceability of any other of its provisions. If one or more
provisions hereof shall be declared invalid or unenforceable, the remaining
provisions shall remain in full force and effect and shall be construed in the
broadest possible manner to effectuate the purposes hereof. The parties further
agree to replace such void or unenforceable provisions of this Agreement with
valid and enforceable provisions which will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable provisions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first above written.
"COMPANY"
VIRTUAL MORTGAGE NETWORK, INC.,
By:_________________________________________
Name:__________________________________
Title:_________________________________
"INVESTOR"
BY: ________________________________________
Authorized Signatory:_______________________
Printed Name: ______________________________
Title (if applicable):______________________
Address (if different from Company records):
____________________________________________
____________________________________________
____________________________________________
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ATTACHMENT 1
VIRTUAL MORTGAGE NETWORK, INC.
LIST OF INVESTORS SIGNING THE FIRST AMENDMENT TO
MASTER REGISTRATION RIGHTS AGREEMENT
1. Xxxxxxx Xxxxxxx
2. Xxxxxxx X. Xxxxxx
3. Xxxxxx X. & Xxxxxxx X. Xxxxx, Trustees of the Xxxxx Revocable Trust
4. Xxxx X. Xxxxxx
5. Xxxxx Xxxxxx
6. Xxxx Xxxxxx
7. Xxxxxx X. Xxxxxx
8. Xxxxx X. Xxxxxx/Xxxxxxx X. Xxxxxx
9. Xxxxxx X. Xxxxx, Trustee of the Xxxx-Xxxxxxx Xxxxx Trust
10. Xxxxxxx Xxxxxx
11. Xxxxxx X. Xxxxxxx
12. Xxxx X. Xxxxx, M.D., Xxxx X. Xxxxx, M.D. Profit Sharing
13. Yong Xxx Xxxxx & Xxxxx Xx Xxxxx
14. Xxxxxx X. Xxxxx/Xxxxx Family Trust
15. Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx
16. Xxxxx X. Xxxxx
17. Xxxxx X. Xxxxxxxxx, Trustee of the Xxxxxxxxxxxx Trust U/A 2/26/87
18. Xxxxx X. Xxxxxxxxx, Trustor and Trustee of the Xxxxx X. Xxxxxxxxx Trust U/A
2/26/87
19. Xxxx X. Xxxxx
20. Xxxxxx X. Xxxxxx
21. Xxxxxx X. Xxxxx & Xxxxx X. Xxxxx
22. Intel by Xxxxx Xxxxxxx - Asst. Treasurer and Salish Rishi
23. Xxxxxxx X. Xxxxx
24. Xxxxxxxx X. Xxxxxxx
25. Xxxxx X. Xxxxx
26. Xxx X. Xxxx, M.D., Xxx X. Xxxx, M.D, a Medical Corporation Employees
Retirement Trust
27. Xxxxxx X. Xxxxxxx, Trustee of the Xxxxxxx Family Trust
28. Xxxxx X. Xxxx, Trustee of the Liss Trust
29. Xxxx X. Xxxx
30. Xxxx Xxxxxx, Trustee of the Xxxxxx Trust dated 10/6/89
31. Xxxx X. Xxxxx & Xxxxxxx X. Xxxxx
32. Xxxxxx Xxxxxxx
33. Viet Xxxx Xxxxxx
34. Xxxxx Xxxxx
35. Xxxxxxx X. Persons
36. Xxxxx X. Xxxx & Xxxxx X. Xxxx
37. XxXxxxx Xxxxxx
38. Xxxxxx Xxxx
39. Xxxxxx X. Xxxx
40. Xxxxx X. Ro
41. Xxx X. Xxxxxxxxx
42. Xxxxxx X. Xxxxxx, Trustee of the Rupert 1993 Family Trust
43. Xxxxxxx Xxxxxxx, Trustee of the Xxxxxxx and Xxxxxxxxx Xxxxxxx 1988 Living
Trust of 9/23/88
44. Xxxxxxx XxxxxxXxxxxx
45. Xxxx X. Xxxxxxxxx, M.D.
46. Xxxx Xxxxx Xxxxxxxxx
47. Xxxx Xxxx Xxxxxxx and Xxxxxx Xxxxxxx
48. Xxxxx Xxxxxxx-Xxxxxxx
49. Xxx X. Xxxx, Partner of Xxxxxx X. Xxxxxx & Co.
50. Xxxxxxxx Xxxxxx Xxxxxx
51. Xxxxxx X. Xxxxxxxxxxx, Trustee of the Zogob Family Business Trust
