AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT (the "Amendment")
dated as of May 12, 2003 by and among OptiCare Health Systems, Inc., a Delaware
corporation (the "Company"), Palisade Concentrated Equity Partnership, L.P., a
Delaware limited partnership ("Palisade"), Xxxxx Xxxxxxxxx, an individual
resident of the State of Connecticut ("Xx. Xxxxxxxxx"), and CapitalSource
Finance, LLC, a Delaware limited liability company ("CapitalSource").
WITNESSETH:
WHEREAS, the parties hereto entered into a Registration Rights
Agreement dated as of January 25, 2002 (the "Registration Rights Agreement");
WHEREAS, the Company is issuing to Palisade and Xx. Xxxxxxxxx 406,158
shares of its Series C Preferred Stock, par value $.001 per share (the "Series C
Preferred Stock"), pursuant to Letter Agreement made as of the date hereof by
and among the Company, Palisade and Xx. Xxxxxxxxx; and
WHEREAS, the parties hereto desire to amend the Registration Rights
Agreement in order to (i) provide that the shares of Common Stock, par value
$.001 per share, issuable upon conversion of any shares of Series C Preferred
Stock are included in the definition of "Registrable Securities" in the
Registration Rights Agreement, and (ii) correct a scriveners error contained in
Section 8(i).
NOW, THEREFORE IT IS AGREED:
Section 1. Amendments to Section 1 of the Registration Rights
Agreement. (a) The following new defined terms are added to Section 1 of the
Registration Rights Agreement:
Agreement: the Registration Rights Agreement dated as of January 25,
2002 by and among OptiCare Health Systems, Inc., a Delaware
corporation, Palisade Concentrated Equity Partnership, L.P., a Delaware
limited partnership, Xxxxx Xxxxxxxxx, an individual resident of the
State of Connecticut, and CapitalSource Finance, LLC, a Delaware
limited liability company, and all amendments thereto.
Series C Preferred Stock: shares of Series C Preferred Stock, par value
$.001 per share, of the Company.
(b) The defined term "Registrable Securities" is hereby deleted and the
following new defined term is inserted in lieu thereof:
Registrable Securities: (i) All shares of Common Stock held by the
Holders, (ii) all shares of Common Stock issuable upon conversion of
any Series B Preferred Stock and Series C Preferred Stock held by the
Holders, (iii) all shares of Common Stock
issuable upon exercise of any Warrants held by the Holders, and (iv)
any securities issued or issuable with respect to the shares of Common
Stock described in clauses (i), (ii), or (iii) of this sentence by way
of a stock dividend or stock split or in connection with a combination
of shares, recapitalization, merger, consolidation or other
reorganization, until such shares of Common Stock or other securities
are not Restricted Securities as defined in Section 2(a).
Section 2. Amendment to Section 8 of the Registration Rights Agreement.
Section 8(i) is hereby deleted and the following is inserted in lieu thereof:
(i) Entire Agreement. This Agreement sets forth the entire agreement
and understanding between the parties and supercedes all proposals,
commitments, writings, negotiations, discussions, agreements and
understandings, oral or written, of every kind and nature between them
concerning the subject matter hereof. This Agreement may not be amended
or otherwise modified except in a writing signed by all parties hereto.
No discharge of the terms hereof shall be deemed valid unless by full
performance by the parties or by a writing signed by the parties. A
waiver by any party of any breach or violation of any provision of this
Agreement shall not be deemed or construed as a waiver of any other
breach or violation hereof.
Section 3. Further Assurances. Each party hereby agrees, at any time
and from time to time after the date hereof, at the reasonable request of the
other parties, to execute and deliver such other agreements, certificates or
instruments as may be reasonably requested in order to more effectively amend
the Registration Rights Agreement as set forth above or to evidence or confirm
this Amendment.
Section 4. Effect of Amendment. The parties hereby ratify and confirm
all of the provisions of the Registration Rights Agreement, as amended hereby,
and agree and acknowledge that the same as so amended remains in full force and
effect.
Section 5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York governing
contracts to be made and performed therein without giving effect to principles
of conflicts of law, and, with respect to any dispute arising out of this
Amendment, each party hereby consents to the exclusive jurisdiction of the
courts sitting in such State.
Section 6. Counterparts. This Amendment may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
OPTICARE HEALTH SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: CEO
PALISADE CONCENTRATED EQUITY PARTNERSHIP, L.P.
By: Palisade Concentrated Holdings, LLC
General Partner
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Member
CAPITALSOURCE FINANCE, LLC
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: Vice President
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
