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EXHIBIT 10.27
AMENDMENT NO. 1
TO
REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT (this "AMENDMENT")
is entered into effective as of August 29, 2000, by and among Interactive
Telesis, Inc., a Delaware corporation, with headquarters located at 000
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx 00000 (the "COMPANY"), and
the undersigned buyers (each, a "BUYER" and collectively, the "BUYERS").
WHEREAS:
A. The parties hereto entered into that certain Registration Rights
Agreement dated June 12, 2000 (the "AGREEMENT"), pursuant to which the Company
agreed to provide certain registration rights with respect to the securities
issued and issuable thereunder. All terms not otherwise defined herein shall
have the meanings ascribed to such terms in the Agreement.
B. The parties desire herein to amend the Agreement to provide that the
Registrable Securities issued and issuable in connection with the Second and
Third Closings shall be covered by separate Registration Statements for each
Closing and that the Registration Statement already filed with the SEC be
amended to cover only the Registrable Securities issued and issuable in
connection with the Initial Closing.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Buyers hereby agree to amend the Agreement as follows:
Section 2.a of the Agreement is hereby amended and restated in its entirety as
follows:
a. Mandatory Registration. The Company shall prepare, and, as
soon as practicable, but in no event later than thirty (30) days after
each applicable Closing Date (as defined in the Securities Purchase
Agreement) (the "SCHEDULED FILING DATE"), file with the SEC a separate
Registration Statement or Registration Statements (as is necessary) on
Form S-3 covering the resale of all of the Registrable Securities issued
and issuable in connection with each such Closing. In the event that
Form S-3 is unavailable for any such registrations, the Company shall
use such other form as is available for such registrations, subject to
the provisions of Section 2.e. Any Registration Statement prepared
pursuant hereto shall register for resale at least that number of shares
of Common Stock equal to the number of Registrable Securities applicable
to that Closing (issued and issuable) as of the date immediately
preceding the date the Registration Statement is initially filed with
the SEC, assuming that the Average Market Price (as defined in the
Securities Purchase Agreement) were to decline 50% from the lower of (a)
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the Purchase Price at the applicable Closing and (b) the closing bid
price of the Common Stock as of the date two days preceding the date the
applicable Registration Statement is initially filed with the SEC (such
lower price shall hereafter be referred to as the "REGISTRATION SHARE
NUMBER CALCULATION PRICE"). The Company shall use its best efforts to
have each Registration Statement declared effective by the SEC as soon
as practicable, but in no event later than ninety (90) days after the
applicable Closing Date in the event the SEC does not review such
Registration Statement and no later than one hundred twenty (120) days
after the applicable Closing Date in the event the SEC conducts a full
review of such Registration Statement (the "SCHEDULED EFFECTIVE DATE").
The Company represents and covenants that no Person other than the
Investors has or will have the right to include any securities of the
Company in any Registration Statement to be filed in accordance with
this Section 2.a.
Sections 3.a and 3.v(i) and (ii) of the Agreement are hereby amended and
restated in their entirety as follows:
Whenever an Investor has requested that any Registrable
Securities be registered pursuant to Section 2.b or at such time as the
Company is obligated to file a Registration Statement with the SEC
pursuant to Section 2.a or 2.f, the Company will use its best efforts to
effect the registration of the Registrable Securities in accordance with
the intended method of disposition thereof and, pursuant thereto, the
Company shall have the following obligations:
a. The Company shall promptly prepare and file with the SEC a
separate Registration Statement with respect to the Registrable
Securities issued and issuable in connection with each Closing (on or
prior to the thirtieth (30th) day after the applicable Closing Date) for
the registration of Registrable Securities pursuant to Section 2.a and
use its best efforts to cause such Registration Statements relating to
the Registrable Securities to become effective as soon as possible after
such filing (but, in no event later than ninety (90) days after the
applicable Closing Date in the event the SEC does not review the
Registration Statement and no later than one hundred twenty (120) days
after the applicable Closing Date in the event the SEC conducts a full
review of the Registration Statement). The Company shall not file any
other Registration Statement with respect to any of its securities
between the date hereof and ninety (90) days after the effective date of
any such Registration Statement (other than a Registration Statement on
Form S-8 (or its equivalent at such time)). The Company shall keep each
of the Registration Statements required to be filed hereunder effective
pursuant to Rule 415 at all times until the earlier of (i) the date as
of which the Investors may sell all of the Registrable Securities
covered by such Registration Statement without restriction pursuant to
Rule 144(k) promulgated under the 1933 Act (or successor thereto) or
(ii) the date on which (A) the Investors shall have sold all the
Registrable Securities covered by such Registration Statement and (B)
none of the Repricing Rights or Warrants is outstanding (the
"REGISTRATION
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PERIOD"), which Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) shall not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading. The term "best efforts" shall mean, among other
things, that the Company shall submit to the SEC, within two business
days after the Company learns that no review of a particular
Registration Statement will be made by the staff of the SEC or that the
staff has no further comments on the Registration Statement, as the case
may be, a request for acceleration of effectiveness of such Registration
Statement to a time and date not later than 48 hours after the
submission of such request.
v. Each of the following events shall constitute a "REGISTRATION
DEFAULT" for purposes of this Agreement:
(i) the Company's failure to file a Registration
Statement by the applicable Scheduled Filing Date or Additional
Scheduled Filing Date thereof, as appropriate;
(ii) the SEC's failure to declare a Registration
Statement effective on or before the applicable Scheduled Effective Date
or Additional Scheduled Effective Date thereof, as appropriate, except
where the failure to meet such deadline is the result solely of actions
by the holders of Registrable Securities or Legal Counsel;
* * * * * *
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to
Registration Rights Agreement to be duly executed as of day and year first above
written.
COMPANY: BUYERS:
INTERACTIVE TELESIS, INC. BH CAPITAL INVESTMENTS, L.P.
By: HB and Co., Inc. its General
Partner
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxxx,
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Name: Xxxxxx X. Xxxxxxx Name: Xxxxx Xxxxxxxxx
Its: President Its: Authorized Signatory
EXCALIBUR LIMITED PARTNERSHIP
By: Excalibur Capital Management, Inc.
Its General Partner
By: /s/ Xxxxxxx Xxxxxxx, by Xxxxx
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Brachfield, his attorney-in-fact
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Name: Xxxxxxx Xxxxxxx, President
