Exhibit 99.2
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this "First
Amendment") is made this 25th day of September, 2005, by and between XXXXXX
TECHNOLOGIES, INC., a Delaware corporation ("Xxxxxx" or the "Company"),
GREYSTONE FUNDING CORPORATION, a Virginia corporation ("Greystone") and Xxxxxxx
Xxxxxx, an individual resident of New York, New York ("Xxxxxx") (individually, a
"Holder" and, collectively, the "Holders"). All capitalized terms used herein
and not otherwise defined shall have the respective meanings assigned to such
terms in the Original Agreement (as defined below).
WHEREAS, the Company and Greystone entered into a Registration
Rights Agreement , dated as of December 27, 1999 (the "Original Agreement");
WHEREAS, on December 27, 1999, Greystone assigned a portion of the
securities to which the Original Agreement relates to Xxxxxx, whereby Xxxxxx
became a party to the Original Agreement;
WHEREAS, the Company and DVI Financial Services, Inc. ("DVI")
entered into a Registration Rights Agreement dated Xxxxx 00, 0000 (xxx "XXX
Registration Agreement"), in respect of certain securities held by DVI (the "DVI
Securities");
WHEREAS, on or about Xxxxxxxxx 0, 0000, XXX assigned the DVI
Securities to Greystone, and Greystone reassigned a portion of the DVI
Securities to Xxxxxx, whereby Greystone and Xxxxxx became successors to DVI
under the DVI Registration Agreement;
WHEREAS, the Company is entering into an Exchange Agreement (the
"Exchange Agreement") with Sirona Holdings Luxco S.C.A, a societe en commandite
par actions, organized under the laws of the Grand Duchy of Luxembourg
("Luxco"), and Xxxxx 00-000 XxxX, a corporation organized under the laws of the
Federal Republic of Germany and to be renamed Sirona Holding GmbH ("Sirona"),
regarding the business combination of the Company and Sirona;
WHEREAS, in connection with the transactions (the "Exchange
Transactions") contemplated by the Exchange Agreement, the Company will enter
into a Registration Agreement (the "Luxco Registration Agreement") with Luxco
to, among other things, grant Luxco registration rights in respect of the
securities of the Company (the "Luxco Securities") to be issued to Luxco in the
Exchange Transactions; and
WHEREAS, the parties to this First Amendment wish to amend certain
provisions of the Original Agreement to reflect, among other things, the
registration rights granted to Luxco in the Luxco Registration Agreement and to
harmonize the provisions of the Original Agreement, the DVI Registration
Agreement and the Luxco Registration Agreement.
NOW, THEREFORE, it is agreed:
1. The defined terms in the recitals of this First Amendment shall
be added to Section 1.1 "Definitions" of the Original Agreement.
2. The following section shall be added after the end of Section
2.1(c) of the Original Agreement:
"(d) Except for Luxco Securities and DVI Securities required to be
included in a Shelf Registration pursuant to the Luxco Registration Agreement
and the DVI Registration Agreement, respectively, the Company shall not include
in a Shelf Registration any securities which are not Registrable Securities
without the prior written consent of the Holders. If a Shelf Registration is an
underwritten Public Offering and the managing underwriters determine that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall include in such registration, prior to the
inclusion of any securities which are not Registrable Securities, Luxco
Securities or DVI Securities, the number of Registrable Securities, Luxco
Securities and DVI Securities requested to be included which in the opinion of
such underwriters can be sold in an orderly manner within the price range of
such offering, pro rata among the respective holders thereof on the basis of the
amount of Registrable Securities, Luxco Securities and DVI Securities owned by
each such holder."
3. The following sentence shall be added at the end of Section 2.3
of the Original Agreement: "No holder of Registrable Securities shall effect any
public sale or distribution (including a sale pursuant to Rule 144 under the
Securities Act) of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to, and the 180-day period beginning on the effective date of,
any underwritten Public Offering in which Registrable Securities are included
(except as part of such underwritten Public Offering), unless the underwriters
managing the Public Offering otherwise agree."
4. Section 2.5 of the Original Agreement shall be amended and
restated as follows:
"Section 2.5 Registration Expenses. (a) Subject to Section 2.5(b)
below, all expenses, other than underwriting discounts and commissions, incident
to the Company's performance of or compliance with this Agreement, including all
registration, qualification and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of custodians, and fees and disbursements of
counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other persons retained by
the Company (all such expenses being herein called "Registration Expenses"),
shall be borne as provided in this Agreement, except that the Company shall, in
any event, pay its internal expenses (including all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance and
the expenses and fees for listing the securities to be registered on each
securities exchange on which
similar securities issued by the Company are then listed or on the NASD
automated quotation system; provided, however, that the Company shall not be
required to pay for any expenses of any registration begun pursuant to Section
2.1 if the registration request is subsequently withdrawn at the request of the
Holder(s) of the Registrable Securities to be registered (in which case all
participating Holder(s) shall bear such expenses).
(b) In connection with each Shelf Registration and each Piggyback
Registration (as defined below), the Company shall reimburse the holders of all
securities included in such registration for the reasonable fees and
disbursements of one counsel chosen collectively by such holders.
(c) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
5. Section 2.6(b) of the Original Agreement shall be amended and
restated as follows:
"(b) If the registration under this Section 2.6 (a "Piggyback
Registration") is for a registered Public Offering involving an underwriting,
the Company shall so advise the Holder as a part of the written notice given
pursuant to subsection 2.6(a)(i). In such event, the right of the Holder to
registration pursuant to this Section 2.6 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. Should
the Holder propose to distribute his securities through such underwriting, he
shall (together with the Company and the other Holders distributing their
securities through such underwriting) enter into an underwriting agreement in a
form agreed upon between the Company and the underwriter or underwriters
selected for such underwriting by the Company. If the Holder disapproves of the
terms of any such underwriting, he may elect to withdraw therefrom by written
notice to the Company and the managing underwriter. Any Registrable Securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration. Notwithstanding any other provision of this Section 2.6, if a
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
number of Registrable Securities to be included in the registration and
underwriting. The Company shall so advise the Holder and the other holders
distributing their securities through such underwriting pursuant to piggyback
registration rights , and the number of shares of Registrable Securities and
other securities that may be included in the registration and underwriting shall
be allocated among the Holder and other holders as follows:
(i) Primary Registrations. If the Piggyback Registration is an
underwritten primary registration on behalf of the Company, the Company shall
include in such registration (i) first, the securities the Company proposes to
sell, (ii) second, the Registrable Securities, the Luxco Securities and the DVI
Securities requested to be included in such registration, pro rata among the
holders on the basis of the number of shares owned by each such holder, and
(iii) third, other securities requested to be included in such registration.
(ii) Secondary Registrations. If the Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company's
securities, then the Company shall include in such registration (i) first, the
securities (other than Registrable Securities, Luxco Securities and DVI
Securities) requested to be included therein by the holders requesting such
registration pursuant to demand registration rights, (ii) second, the
Registrable Securities, the Luxco Securities and the DVI Securities requested to
be included in such registration, pro rata among the holders of Registrable
Securities, Luxco Securities and DVI Securities on the basis of the number of
shares owned by each such holder, and (iii) third, other securities requested to
be included in such registration pursuant to piggyback registration rights or
otherwise."
6. Section 2.6(c) of the Original Agreement shall be deleted in its
entirety.
7. The following sentence shall be added at the end of Section 4.1
of the Original Agreement: "Notwithstanding the foregoing, no rights under this
Agreement shall be assigned to any Holder that is a tax-exempt organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended."
8. The following section shall be added after the end of Section
4.2(b) of the Original Agreement:
"(c) The Company shall not amend, waive or modify the terms
and conditions of Section 1(d), 2(c) or 2(d) of the Luxco Registration Agreement
or the DVI Registration Agreement without the prior written consent of the
holders of a majority of the Registrable Securities."
9. This First Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provisions of the
Original Agreement. The amendments set forth in Sections 2, 3, 4, 5, 6 and 8
hereof shall be effective on and after the date of the Luxco Registration
Agreement and shall cease to be effective in the event of the termination of the
Exchange Agreement.
10. This First Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
11. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first above written.
XXXXXX TECHNOLOGIES, INC.
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By: Xxx Xxxxxx
Title: Secretary and General Counsel
GREYSTONE FUNDING CORPORATION
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By: Xxxxxxx Xxxxxxxxx
Title: President
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Xxxxxxx Xxxxxx
