FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
Exhibit 10.3
FIRST AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
This
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (the “Amendment”) is made
and entered into as of January 8, 2009 and effective as of January 2, 2009, by
and between ISCO International, Inc., a Delaware corporation (the “Company”) and
Alexander Finance, L.P., an Illinois limited partnership (“Alexander”).
W
I T N E S S E T H:
WHEREAS, on January 3, 2008,
the Company and Alexander entered into that certain Registration Rights
Agreement (the “Registration Rights
Agreement”); and
WHEREAS, the parties desire to
amend the Registration Rights Agreement to provide for certain changes as more
fully set forth herein.
A
G R E E M E N T:
NOW, THEREFORE, in
consideration of the covenants and agreements herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Definitions. All
capitalized terms used herein and not defined or amended herein shall have the
meanings ascribed to them in the Registration Rights Agreement.
2. Amendments. The
parties hereby agree to amend the Registration Rights Agreement as
follows:
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a)
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Delete
the definition of “Approval Date”
in Section 1 in its entirety.
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b)
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Replace
the lead-in to Section 2(a)
and Section
2(a)(i) their entirety with the
following:
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“(a) The
Company shall:
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(i)
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prepare
and file a registration statement with the Commission no later than June
30, 2009 pursuant to Rule 415 under the Securities Act on Form S-3 under
the Securities Act (or in the event that the Company is ineligible to use
such form, such other form as the Company is eligible to use under the
Securities Act provided that such other form shall be converted into an
S-3 as soon as Form S-3 becomes available to the Company) covering resales
by the Holders as selling stockholders (not underwriters) of the
Registrable Securities (the “Registration Statement”), which Registration
Statement, to the extent allowable under the Securities Act and the rules
promulgated thereunder (including Rule 416), shall state that such
Registration Statement also covers the resale of such indeterminate number
of additional shares of Common Stock as may be issued upon conversion of
the Amended and Restated Notes by reason of stock splits, stock dividends
or similar transactions. The number of shares of Common Stock
initially included in such Registration Statement shall be no less than
7,500,000, unless the SEC instructs the Company that a lesser number of
shares of Common Stock will be permitted to be included in such
Registration Statement, in which case the Registration Statement shall
include the number of shares of Common Stock permitted by the
SEC. The Company shall, in accordance with applicable SEC
rules, regulations, interpretations and practices, amend such Registration
Statement or file additional Registration Statements to cover the number
of additional shares of Common Stock that may be issued or issuable
pursuant to the terms of the New Note in the event that the number of
shares of Common Stock initially registered is insufficient or reduced in
accordance with applicable SEC rules, regulations, interpretations and
practices. Nothing in the preceding sentence will limit the
Company’s obligations to reserve shares of Common Stock pursuant to
Section 3(d) of the New Note. Thereafter the Company shall use
its reasonable best efforts to cause such Registration Statement and other
filings to be declared effective as soon as possible, and in any event on
or prior to September 30, 2009, if Registration Statement is not reviewed
by the Commission, or by November 30, 2009 if the Registration Statement
is reviewed by the Commission (the “Effectiveness
Deadline”). Without limiting the foregoing, the Company will
promptly respond to all SEC comments, inquiries and requests, and shall
request acceleration of effectiveness at the earliest possible
date.”
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c)
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Replace
Section
2(a)(viii) in its entirety with the
following:
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“(viii)
If applicable, list the Registrable Securities covered by such Registration
Statement with any and all securities exchange(s) and/or market(s) on which the
Common Stock is then listed or quoted, and prepare and file any required filings
with any such exchange(s) or market(s), if applicable.”
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d)
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Replace
Section
2(b)(i)(A) in its entirety with the
following:
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“(A) In
the event that such Registration Statement has not been declared effective by
the Effectiveness Deadline, or the Company at any time fails to issue unlegended
Registrable Securities to the extent required by Section 7 of the Amendment
Agreement, then the Company shall pay each Holder (other than (i) in the case of
a Registration Statement not declared effective, a Holder of Registrable
Securities that the Company could exclude from registration in accordance with
Section 9 and (ii) in the case of a failure to issue unlegended certificates in
accordance with the Amendment Agreement, a Holder that is not a party to,
including as a permitted assignee bound to, the Amendment Agreement) a Monthly
Delay Payment (as defined below) with respect to each successive 30-day period
(or portion thereof appropriately prorated) thereafter that effectiveness of the
Registration Statement is delayed or failure to issue such unlegended
Registrable Securities persists.”
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e)
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Replace
Section 2(b)(ii)
in its entirety with the
following:
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“(ii)
Intentionally Omitted.”
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f)
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Replace
Section 2(f) in its entirety with the
following:
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“(f) The
Company shall make available for inspection by the Holders, representative(s) of
all the Holders together, any underwriter participating in any disposition
pursuant to a Registration Statement, and any attorney or accountant retained by
any Holder or underwriter, all financial and other records customary for
purposes of the Holders’ due diligence examination of the Company and review of
any Registration Statement, all SEC Documents (as defined in the Purchase
Agreement) filed subsequent to January 2, 2009, pertinent corporate documents
and properties of the Company, and cause the Company’s officers, directors and
employees to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with such
Registration Statement, provided that such parties agree to keep such
information confidential. Notwithstanding the foregoing, the
foregoing right shall not extend to any Holder (i) who is not a financial
investor or entity or (ii) who, itself or through any affiliate, has any
strategic business interest that would reasonably be expected to be in conflict
with any business of the Company or its subsidiaries.”
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g)
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Replace
Section 2(h) in its entirety with the
following:
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“(h) If
the Holders become entitled, pursuant to an event described in clause (ii) and
(iii) of the definition of Registrable Securities, to receive any securities in
respect of Registrable Securities that were already included in a Registration
Statement, subsequent to the date such Registration Statement is declared
effective, and the Company is unable under the securities laws to add such
securities to the then effective Registration Statement, the Company shall
promptly file, in accordance with the procedures set forth herein, an additional
Registration Statement with respect to such newly Registrable
Securities. The Company shall use its best efforts to (i) cause any
such additional Registration Statement, when filed, to become effective under
the Securities Act, and (ii) keep such additional Registration Statement
effective during the period described in Section 5 below and cause such
Registration Statement to become effective within 90 days of that date that the
need to file the Registration Statement arose. All of the
registration rights and remedies under this Agreement shall apply to the
registration of the resale of such newly reserved shares and such new
Registrable Securities, including without limitation the provisions providing
for default payments contained herein.”
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h)
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Replace
Section
13(c) in its entirety with the
following:
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“(c)
Notices. Any
notice or other communication required or permitted to be given hereunder shall
be in writing by facsimile, electronic transmission, mail or personal delivery
and shall be effective upon actual receipt of such notice. The
addresses for such communications shall be:
to the
Company:
ISCO
International, Inc.
0000
Xxxxxxxxx Xxxxx
Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxx
Xxxxxx
E-mail:
xxxx.xxxxxx@xxxxxxxx.xxx
with a
copy to:
McGuireWoods
LLP
00 Xxxx
Xxxxxx Xxxxx
Xxxxx
0000
Xxxxxxx, Xxxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxx
X. Xxxxxxxx, Esq.
E-mail:
xxxxxxxxx@xxxxxxxxxxxx.xxx
to the
Lender:
Alexander
Finance, LP
0000
Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxxxx
X. Xxxxxxxx
E-Mail:
xxxxxxxxx@xxxxx.xxx
with a
copy to:
Xxxx
Xxxxx LLP
00 Xxxxx
Xxxxxx Xxxxx
Xxxxxxx,
XX 00000-0000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxx
X. Xxxxxxxxx, Esq.
E-Mail:
xxxxxxxxxx@xxxxxxxxx.xxx
Any party
hereto may from time to time change its address for notices by giving at least
five days’ written notice of such changed address to the other parties
hereto.”
3. Governing
Law. This Amendment shall be construed in accordance with and
governed by the internal laws of the State of New York, without regard to choice
of laws principles.
4. Counterparts. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which, when so executed and delivered,
shall be deemed an original, but all of which counterparts together shall
constitute but one agreement.
5. Full Force and
Effect. Except as specifically modified or amended by the
terms of this Amendment, the Registration Rights Agreement and all provisions
contained therein are, and shall continue, in full force and
effect.
{Signature
Page Follows}
IN WITNESS WHEREOF, the
undersigned have caused this Amendment to be duly executed as of the date first
written above.
| ISCO INTERNATIONAL, INC. | |||
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By:
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/s/ Xxxx Xxxxxx | |
| Name : Xxxx Xxxxxx | |||
| Its: Chief Financial Officer | |||
| ALEXANDER FINANCE, L.P. | |||
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By:
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/s/ Xxxxxxxx Xxxxxxxx | |
| Name: Xxxxxxxx Xxxxxxxx | |||
| Title: President of Bun Partners, Inc., | |||
| General Partner of Alexander Finance, L.P. | |||
