EXHIBIT 4.4
AMENDMENT NO. 1
BY AND AMONG
SCIENTIFIC LEARNING CORPORATION
WARBURG, XXXXXX VENTURES, L.P.
AND
WPV, INC.
EFFECTIVE AS OF MARCH 9, 2001
TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
ENTERED INTO AS OF DECEMBER 30TH, 1998,
AMENDMENT NO. 1 TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Reference is made to the Amended and Restated Registration Rights
Agreement (the "AGREEMENT"), entered into as of December 30, 1998, by and among
Scientific Learning Corporation, a Delaware corporation (the "Company"),
Warburg, Xxxxxx Ventures, L.P. ("WP VENTURES"), a Delaware limited partnership
and a holder of shares of Common Stock of the Company, par value $0.001 per
share (the "COMMON STOCK"), and the parties listed on Exhibit A attached thereto
(such parties, together with WP Ventures, the "OTHER PARTIES"). This Amendment
No. 1, effective as of March 9, 2001, by and among the Company, WP Ventures and
WPV, Inc. ("WPV"), a Delaware corporation and the recipient of a warrant to
acquire shares of Common Stock, is attached to and made a part of the Agreement,
and the Agreement is hereby amended and supplemented as follows:
WHEREAS, the Company and the Other Parties entered the Agreement to
provide the right to the Other Parties to require that the Company prepare and
file a registration statement under the U.S. Securities Act of 1933 under
specified circumstances relating to the offer and sale of the Company's
securities held by such Other Parties; and
WHEREAS, the Company is issuing on the date hereof a warrant or
warrants to WPV to purchase up to 1,375,000 shares of the Common Stock in
consideration of the delivery by WPV of an unlimited guaranty of that certain
$15,000,000 line of credit to be extended by Fleet National Bank, N.A. to the
Company (the "GUARANTY"), and, in consideration of, and as further inducement to
WPV to deliver, the Guaranty, the Company desires to amend certain provisions of
the Agreement to change the registration rights of WP Ventures with respect to
its holdings of certain of the Company's securities as set forth herein, and to
add WPV as a party to the Agreement; and
WHEREAS, Section 2.10 of the Agreement provides that any provision of
Section 2 of the Agreement may be amended "...with the written consent of the
Company and the Holders of at least a majority of the Registrable Securities,"
and that "[a]ny amendment... effected in accordance with... Section 2.10 shall
be binding on each Holder and the Company;" and
WHEREAS, WP Ventures is the Holder of a majority of the Registrable
Securities pursuant to the definitions of such terms contained in Section 1.1 of
the Agreement; and
NOW, THEREFORE, in consideration of the premises set forth above and
the mutual representations, warranties and agreements contained herein, the
adequacy and sufficiency of which consideration is hereby agreed by the parties
to be satisfactory, the parties hereby agree to amend the Agreement as follows:
A. DEFINITION OF "REGISTRABLE SECURITIES": Section 1.1 of the Agreement is
hereby amended by deleting the current definition of "Registrable
Securities" in its entirety and replacing it with the following:
""REGISTRABLE SECURITIES" means: (i) any Common Stock of the Company
issued or issuable upon conversion of the Shares; (ii) any Common Stock
of the Company issued as (or issuable upon the conversion or exercise
of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in
replacement of, such above-described securities; (iii) all of the
shares of Common Stock of the Company issuable upon exercise of the
warrants issued to Warburg, Xxxxxx Ventures, L.P., a Delaware limited
partnership, on June 4, 1998 and October 23, 1998; (iv) all of the
shares of Common Stock of the Company issuable upon exercise of the
warrants issued to WPV, Inc., a Delaware corporation, on March 9, 2001;
and (v) up to an aggregate of 1,000,000 additional shares of Common
Stock now held or hereafter acquired by Warburg, Xxxxxx Ventures, L.P.,
WPV, Inc. or any of their affiliates (as such term is defined in Rule
405 under the Exchange Act), whether purchased from the Company or in
the open market, or acquired by any other means, such 1,000,000 shares
of Common Stock being in addition to any other shares of Common Stock
included as Registrable Securities pursuant to clauses (i) through (iv)
of this definition."
B. ADDITION OF WPV AS A PARTY TO THE AGREEMENT. For the purpose of adding
WPV as a party to the Agreement, WPV shall execute a copy of the
Agreement as an "Investor" on the date hereof and Exhibit A of the
Agreement is hereby amended by adding the following language to the end
of the existing Exhibit A:
"WPV, Inc. (Not Applicable) Warrants to acquire 1,375,000
000 Xxxxxxxxx Xxxxxx shares of Common Stock, par
Xxx Xxxx, XX 00000 value $0.001 per share"
Attention: Xxxxxxx Xxxx
XX. GENERAL.
(a) All capitalized terms defined in the Agreement and used herein, except as
otherwise defined herein, shall have the same meanings as in the Agreement.
(b) The Agreement together with this Amendment replaces and supersedes all other
agreements, written or oral with respect to its subject matter.
(c) Except as expressly amended and supplemented hereby, the Agreement remains
in full force and effect.
(d) If any term of this Amendment conflicts with the terms of the Agreement, the
terms of this Amendment shall prevail.
(e) This Amendment may be signed in counterparts, each of which shall constitute
an original and which together shall constitute one and the same amendment.
(f) This Amendment shall be governed by and construed in accordance with the
laws of the State of California applicable to contracts between California
residents entered into and to be performed entirely within the State of
California without giving effect to the conflict or choice of law principles
thereof.
IN WITNESS WHEREOF, the parties' duly authorized representatives hereby
have executed this Agreement as of the date first written above.
SCIENTIFIC LEARNING CORPORATION WPV, INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxx
-------------------------------- -------------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxxxx Xxxx
Title: Chief Financial Officer Title: Vice President
Address: 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
WARBURG, XXXXXX VENTURES, L.P
By: /s/ Xxxxxxx Xxxx
--------------------------------
Name: Xxxxxxx Xxxx
Title: Partner
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
[Signature page to Amendment No. 1 to Amended and Restated Registration
Rights Agreement, entered into as of December 30, 1998]
