EXHIBIT 4.3
AMENDMENT TO RIGHTS AGREEMENT
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AMENDMENT TO RIGHTS AGREEMENT (this "AMENDMENT") is dated effective as
of May 18, 2003, between New Visual Corporation (formerly New Visual
Entertainment, Inc.), a Utah corporation (the "COMPANY"), and Wachovia Bank,
N.A. (formerly, First Union National Bank), as Rights Agent (the "RIGHTS
AGENT").
RECITALS
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1. The Company and the Rights Agent have previously entered into that
certain Rights Agreement, dated as of August 9, 2000 (the "AGREEMENT").
2. Section 27 (SUPPLEMENTS AND AMENDMENTS) of the Agreement provides,
in part, that as long as the Rights are redeemable, the Agreement may be
supplemented or amended without the approval of any holders of Rights.
3. The Company intends to enter into a Collateral Loan Agreement and
Promissory Note (the "COLLATERAL LOAN AGREEMENT") with Mercatus & Partners Ltd.,
pursuant to which, among other things, the Company may from time to time borrow
funds and secure such borrowings by issuing shares of Series C Preferred Stock
of the Company (the "COLLATERAL STOCK"), which Collateral Stock will be
convertible into Common Stock of the Company in the event of a default by the
Company in the performance of its repayment obligations under the Collateral
Loan Agreement.
4. The Company desires to amend the Agreement to ensure that no Person
will be deemed to be an Acquiring Person (as defined in the Agreement) as the
result of acquiring Collateral Stock or Common Stock issued upon conversion of
Collateral Stock pursuant to the provisions of the Collateral Loan Agreement.
AGREEMENT
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Section 1. EFFECTIVENESS OF AMENDMENT. This Amendment shall become
effective as of the effective date of the Collateral Loan Agreement. In the
event that the Collateral Loan Agreement is not entered into this Amendment
shall be null and void.
Section 2. DEFINITIONS. All capitalized terms used but not defined
herein shall have the meanings given to them in the Agreement.
Section 3. AMENDED DEFINITION. Pursuant to Section 27 of the Agreement
(SUPPLEMENTS AND AMENDMENTS), the undersigned wish to amend Section 1 (p) of the
Agreement (CERTAIN DEFINITIONS -- EXEMPT PERSON) by deleting the existing
Section 1(p) in its entirety and replacing it with a new Section 1(p) to read as
follows:
(p) "EXEMPT PERSON" shall mean (i) the Company, any Subsidiary of the
Company, any employee benefit plan or employee stock plan of the
Company or any Subsidiary of the Company, or any Person organized,
appointed or established for or pursuant to the terms of any such plan
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or for the purpose of funding any such plan or funding other employee
benefits for employees of the Company or of any Subsidiary of the
Company, (ii) any Person who or which is or becomes the Beneficial
Owner of 20% or more of the shares of Common Stock then outstanding as
the result of such Person's Beneficial Ownership of the Company's
Series C Convertible Preferred Stock, or acquisition from the Company
of any shares of Common Stock issued by the Company to such Person upon
conversion of the Series C Convertible Preferred Stock, or acquisition
of the Company's securities, including, but not limited to securities
convertible into Common Stock, in exchange for the Company's Series C
Convertible Preferred Stock held by such Person, unless and until such
Person, while a Beneficial Owner of 20% or more of the shares of Common
Stock then outstanding, acquires in any manner other than pursuant to
such conversion or exchange, Beneficial Ownership of additional shares
of Common Stock constituting 1% or more of the then outstanding shares
of Common Stock.
Section 4. GOVERNING LAW. This Amendment shall be deemed to be a
contract made under the laws of the State of Utah and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and to be performed entirely within such State.
Section 5. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
Section 6. RIGHTS AGREEMENT PROVISIONS. All provisions of the
Agreement, as amended hereby, remain in full force and effect.
SIGNATURE PAGE FOLLOWS THIS PAGE
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Rights Agreement to be duly executed as of the day and year first above written.
NEW VISUAL CORPORATION
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx
President and Chief Executive Officer
WACHOVIA BANK, N.A., as Rights Agent
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
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