FIRST AMENDMENT TO REGISTATION RIGHTS AMENDMENT
FIRST
AMENDMENT TO
This
First Amendment (“this
Amendment”)
is
dated as of March 6, 2007, among SpatiaLight, Inc., a New York corporation
(the
“Company”),
and
each persons identified on the signature pages hereto (each, including its
successors and assigns, a “Purchaser”
and
collectively the “Purchasers”).
Capitalized terms used but not defined in this Amendment have the meaning
assigned to them in the Registration Rights Agreement (as defined
below).
WHEREAS,
the Company and the Purchasers entered into that certain Securities Purchase
Agreement dated and effective as of September 26, 2006 (the “Securities
Purchase Agreement”)
providing for the sale and purchase of certain securities pursuant to Section
4(2) of the Securities Act of 1933, as amended (the “Securities
Act”),
and
Rule 506 promulgated thereunder; and
WHEREAS,
in connection with the Securities Purchase Agreement, the Company and the
Purchasers entered into that certain Registration Rights Agreement dated and
effective as of September 26, 2006 (the “Registration
Rights Agreement”)
providing for the registration of the shares of the Registrable Securities
(as
defined in the Registration Rights Agreement) and providing for the payment
of
liquidated damages in certain events; and
WHEREAS,
the Company and the Purchasers entered into that certain Waiver Agreement dated
and effective as of November 29, 2006 (the “First
Waiver”)
providing for the waiver of certain provisions of the Securities Purchase
Agreement relating to the subsequent sale of securities in exchange for the
issuance of warrants (the “Waiver
Warrants”)
to
purchase 250,000 shares of the Company’s common stock, $.01 par value (the
“Common
Stock”)
and
other consideration; and
WHEREAS,
the Company has not filed a registration statement relating to the Registerable
Securities and there are accrued liquidated damages in the amount of $30,806.45
on the date hereof; and
WHEREAS,
the Company and the Purchasers wish to amend the First Waiver to eliminate
the
requirement that the Company issue Waiver Warrants, waive the payment of
liquidated damages under the Registration Rights Agreement accrued prior to
the
date of this Amendment, and to amend certain provisions of the Registration
Rights Agreement, as more fully described below in exchange for the issuance
of
shares of Common Stock of the Company as set forth below;
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Amendment,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each of the Purchasers agree as
follows:
ARTICLE
I
WAIVERS
AND AMENDMENTS
(a) Deletion
of Waiver Warrants. The First Waiver is amended to delete any requirement that
the Company issue the Waiver Warrants.
(b) Waiver
of
Liquidated Damages. The Purchasers hereby waive and forgive any obligation
for
the Company to pay liquidated damages or penalties under the Registration Rights
Agreement arising from or relating to the failure of the Company to file prior
to the date of this Amendment a registration statement relating to the
Registrable Securities or the failure of the registration statement relating
to
the Registrable Securities to be declared effective prior to the date of this
Amendment.
(c) Amendment
to Registration Rights Agreement. The Registration Rights Agreement is amended
hereby as follows:
(i) The
definition of “Effectiveness Date” is amended to be, with respect to the initial
Registration Statement filed under the Registration Rights Agreement, the
90th
calendar
day following the date of this Amendment (the 120th
calendar
day in the case of a “full review” by the Commission) and, with respect to any
additional Registration Statements which may be required pursuant to Section
3(c) of the Registration Rights Agreement, the 60th
calendar
day following the date on which the Company first knows, or reasonably should
have known, that such additional Registration Statement is required thereunder;
provided,
however,
in the
event the Company is notified by the Commission that one of the above
Registration Statements will not be reviewed or is no longer subject to further
review and comments, the Effectiveness Date as to such Registration Statement
shall be the fifth (5th)
Trading
Day following the date on which the Company is so notified if such date precedes
the dates required above.
(ii) The
definition of “Filing Date” means, with respect to the initial Registration
Statement required under the Registration Rights Agreement, the 30th
calendar
day following the date of this Amendment and, with respect to any additional
Registration Statements which may be required pursuant to Section 3(c) of the
Registration Rights Agreement, the 30th
day
following the date on which the Company first knows, or reasonably should have
known that such additional Registration Statement is required
thereunder.
(d) The
purchasers hereby waive any rights of participation in future
financing.
ARTICLE
II
ISSUANCE
OF SHARES OF COMMON STOCK
On
the
date hereof the Company shall issue to the Purchasers an aggregate of 500,000
shares of Common Stock (the “New
Common Shares”)
by
crediting the account of the each Purchaser’s broker with the Depository Trust
Company through its Deposit Withdrawal Agent Commission system in accordance
with the instructions attached hereto as Exhibit I the number of shares set
forth in such instructions. Except as otherwise provided herein, the Securities
Purchase Agreement and the Registration Rights Agreement are unmodified and
in
full force and effect.
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ARTICLE
III
REPRESENTATIONS
OF COMPANY
The
Company represents and warrants to the Purchasers that:
(a) The
New
Common Shares shall be freely transferable by the Purchasers without
restriction. The New Common Shares shall not bear a restricted legend under
applicable Federal and state securities laws.
(b) This
Amendment has been duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company, enforceable
in
accordance with its terms (subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization or other similar laws and to general
principles of equity).
(c) the
Company’s execution, delivery and performance of this Amendment does not (i)
violate or conflict with, or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, result in the creation
of any lien upon any of the properties or assets of the Company, or give to
others any rights of termination, amendment, acceleration, or cancellation
(with
or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a debt of the Company or otherwise) or
other understanding to which the Company is a party or by which any property
or
asset of the Company is bound or affected, (ii) conflict with the Company’s
certificate of incorporation or bylaws, (iii) conflict with, or result in a
violation of any law, rule or regulation applicable to the Company, or any
order
or judgment of any court or other agency of government applicable to, or
affecting the Company.
(d) The
Company has filed all forms, reports and documents (the “SEC
Documents”)
required to be filed with the Securities and Exchange Commission (the
“Commission”)
pursuant to the Securities Act of 1933, as amended (the “Securities
Act”)
or the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
as
the case may be, and the rules and regulations of the Commission thereunder
during the 12 month period ending on the date of this Amendment. Except as
corrected by subsequent amendment, as of their respective filing dates, the
SEC
Documents complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the Commission thereunder applicable to such SEC Documents,
and
none of the SEC Documents contained any untrue statement of a material fact
or
omitted to state a material fact required to stated therein or necessary in
order to make statements therein, in light of the circumstances under which
they
were made, not misleading. Except as corrected by subsequent amendment, as
of
their respective filing dates, the financial statements of the Company included
in the SEC Documents complied as to form in all material respects with the
applicable accounting requirements and the rules and regulations of the
Commission thereunder and were prepared in accordance with generally accepted
accounting principles and fairly presented, in all material respects, the
financial position of the Company as at the dates thereof and the results of
operations and cash flows of the Company for the periods then ended (subject,
in
the case of unaudited statements, to normal, recurring audit adjustments not
material in scope or amount).
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(e) The
New
Common Shares are included in the Company’s registration statement filed with
the Commission Registration No. 333-137100 (the “Registration Statement.”). The
Registration Statement covering the issuance of the New Common Shares was
declared effective on February 14, 2007 by the Commission and neither the
Commission nor any state regulatory authority has issued, or threatened to
issue, any order preventing or suspending the use of the Registration Statement
or the prospectus contained therein or has instituted or, to the Company’s
knowledge, threatened to institute any proceedings with respect to such an
order.
(f) No
consent, approval, authorization or order of, or filing or registration with,
any court, regulatory authority or other governmental agency or body or third
party is required in connection with the transactions contemplated herein.
(g) The
Company hereby confirms that neither it nor, to its knowledge, any other person
acting on its behalf has provided the Purchaser or its agents or counsel with
any information that it believes constitutes or might constitute material,
non-public information.
ARTICLE
IV
REPRESENTATIONS
OF THE PURCHASERS
The
Purchasers severally represent and warrant to the Company that:
(a) Each
Purchaser is duly organized, validly existing and it has full right, power
and
authority to enter into this Amendment and to perform its obligations hereunder
in accordance with the terms of this Amendment and has taken all necessary
action to authorize the execution, delivery and performance of this
Amendment.
(b) This
Amendment has been duly authorized, executed and delivered by it and constitutes
a legal, valid and binding obligation of it, enforceable in accordance with
its
terms (subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization or other similar laws and to general principles of
equity).
(c) Each
Purchaser’s execution, delivery and performance of this Amendment does not
violate or conflict with such Purchaser’s governing documents or any law, rule
or regulation applicable to such Purchaser, or any order or judgment of any
court or other agency of government applicable to or affecting such
Purchaser.
ARTICLE
V
MISCELLANEOUS
(a) Expenses.
Each of the Purchaser and the Company agrees to pay its own expenses and
disbursements incident to the performance of its obligations
hereunder.
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(b) Rights
Cumulative; Waivers. The rights of each of the parties under this Amendment
are
cumulative. The rights of each of the parties hereunder shall not be capable
of
being waived or varied other than by an express waiver or variation in writing.
Any failure to exercise or any delay in exercising any of such rights shall
not
operate as a waiver or variation of that or any other such right. Any defective
or partial exercise of any of such rights shall not preclude any other or
further exercise of that or any other such right. No act or course of conduct
or
negotiation on the part of any party shall in any way preclude such party from
exercising any such right or constitute a suspension or any variation of any
such right.
(c) Benefit;
Successors Bound. This Amendment and the terms, covenants, conditions,
provisions, obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned parties and
their heirs, executors, administrators, representatives, successors, and
permitted assigns.
(d) Entire
Agreement. This Amendment contains the entire agreement between the parties
with
respect to the subject matter hereof. There are no promises, agreements,
conditions, undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, between them with respect
to this Amendment or the matters described in this Amendment, except as set
forth in this Amendment and in the other documentation relating to the
transactions contemplated by this Amendment. Any such negotiations, promises,
or
understandings shall not be used to interpret or constitute this
Amendment.
(e) Amendment.
Neither this Amendment nor any term hereof may be amended, waived, discharged
or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
(f) Severability.
Each part of this Amendment is intended to be severable. In the event that
any
provision of this Amendment is found by any court or other authority of
competent jurisdiction to be illegal or unenforceable, such provision shall
be
severed or modified to the extent necessary to render it enforceable and as
so
severed or modified, this Amendment shall continue in full force and effect.
(g) Notices.
All notices, requests, demands or other communications which are required or
may
be given pursuant to the terms of this Amendment shall be in writing and shall
be deemed to have been duly given: (i) on the date of delivery if delivered
by
hand, (ii) upon the third day after such notice is (a) deposited in the United
States mail, if mailed by registered or certified mail, postage prepaid, return
receipt requested or (b) sent by a nationally recognized overnight express
courier, or (iii) by facsimile upon written confirmation (other than the
automatic confirmation that is received from the recipient’s facsimile machine)
of receipt by the recipient of such notice: (i) if a Purchaser: at the address
of the Purchaser on the signature page hereof; and (ii) if to the Company:
Spatialight, Inc., Xxxx Xxxxxxxx Xxxxxxx, Xxxxxx XX 00000, Facsimile No. (000)
000-0000
(h) Governing
Law. This Amendment shall be governed by, and construed in accordance with,
the
laws of the State of New York
without
giving effect to the principles regarding conflicts of laws. The parties
irrevocably consent to the exclusive jurisdiction of any State or Federal Court
located within the County of New York, State of New York, in connection with
any
action or proceeding arising out of or relating to this Amendment.
-5-
(i) Further
Assurances. In addition to the instruments and documents to be made, executed
and delivered pursuant to this Amendment, the parties hereto agree to make,
execute and deliver or cause to be made, executed and delivered, to the
requesting party such other instruments and to take such other actions as the
requesting party may reasonably require to carry out the terms of this Amendment
and the transactions contemplated hereby.
(j) Section
Headings. The Section headings in this Amendment are for reference purposes
only
and shall not affect in any way the meaning or interpretation of this
Amendment.
(k) Construction.
Unless the context otherwise requires, when used herein, the singular shall
be
deemed to include the plural, the plural shall be deemed to include each of
the
singular, and pronouns of one or no gender shall be deemed to include the
equivalent pronoun of the other or no gender.
(l) Execution
in Counterparts. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall constitute
one
and the same agreement. This Amendment, once executed by a party, may be
delivered to the other party hereto by telephone line facsimile transmission
of
a copy of this Amendment bearing the signature of the party so delivering this
Amendment. A facsimile transmission of this signed Agreement shall be legal
and
binding on all parties hereto.
-6-
IN
WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
by
their respective officers thereunto duly authorized as of the day and year
first
above written.
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COMPANY:
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
CEO
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PURCHASER:
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BLUEGRASS
GROWTH FUND, L.P.
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By:
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/s/
Xxxxx Xxxxx
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Name:
Xxxxx Xxxxx
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Title:
Managing Member
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Bluegrass
Growth Fund Partners, LLC
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Address:
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000
X. 00xx
Xx., Xxxxx 0000
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Xxx
Xxxx, XX 00000
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-7-
Exhibit
I
DWAC
INSTRUCTIONS
300,000
shares to:
Citigroup
Global Markets - DTC#0418
For
further credit to: Bluegrass Growth Fund LP
Account:
522-43353
And
200,000
shares to:
Citigroup
Global Markets - DTC#0418
For
further credit to: Bluegrass Growth Fund LTD
Account:
522-94709
