EXHIBIT 99.2
------------
AMENDMENT NO. 1 TO SUBSCRIPTION AGREEMENT
-----------------------------------------
WHEREAS, (the "Purchaser") has entered into a
-----------------------
Subscription Agreement ("Subscription Agreement") subscribing for the purchase
of shares of the $.01 par value common stock of XXXX, Inc. (the
---------
"Company") at a purchase price of $11.00 per common share; and
WHEREAS, Purchaser understands that the Company has consummated a sale of
one million (1,000,000) shares of its $.01 par value common stock to an
accredited investor ("Accredited Investor") at $11.00 per common share; and
WHEREAS, such Accredited Investor was granted demand registration rights
having priority to those granted to the Purchaser in the limited circumstances
of an underwritten offering; and
WHEREAS, the Purchaser has agreed to accept subordination in the
application of the demand registration rights granted to the Purchaser in the
Subscription Agreement in the limited circumstances of an underwritten offering.
NOW THEREFORE, it is agreed that the Subscription Agreement is hereby
amended to reflect such subordination and as amended remains in full force and
effect:
1. Section 5(a) of the Subscription Agreement is hereby amended, and as
amended, shall read as follows:
(5) Registration Rights
-------------------
(a) Registration Rights; Requests for Registration.
(1) The Purchaser understands that the Company is offering,
concurrently with its sale to the Purchaser, up to Five Hundred
Thousand (500,000) Shares of its $.01 par value common stock (including
the Shares subscribed for by the Purchaser) to other "accredited
investors" in a private placement of such stock who shall be granted
registration rights which are, in substance, identical to those granted
to Purchaser by this Section (5). The holders of a majority of the
aggregate number of shares actually sold in such offering
("Registerable Shares") shall be entitled at any time after the
expiration of the six month period immediately following September 30,
1995 to make a written request that the Company register for resale
under the 1933 Act, all or any number of the Registerable Shares,
provided that with respect to any such request, the Company shall not
be required by the registration rights granted under this section (5)
to file a Registration Statement or cause a filed Registration
Statement to become effective if such filing, in compliance with and
pursuant to the regulations and rules contained in Regulation S-X
dealing with the age of financial statements at the effective date of a
registration statement, would require the Company to include in such
Registration Statement audited financial statements of the Company
which, but for such request, would not otherwise have been required, in
compliance with such applicable rules and regulations, to have been
furnished by the Company in the normal course of its business and
operations.
Within 30 days after receipt of any such request, the
Company will give written notice of such request to all other holders
of Registerable Shares and will include in such registration all
Registerable Shares with respect to which the Company has received
written requests for inclusion therein within 15 days after the
Company's notice is mailed. The registration requested pursuant to
this paragraph (5)(a)(1) is referred to herein as the "Demand
Registration".
For purposes of this right to demand registration, a
registration will not count as the Demand Registration until (i) it has
become effective and (ii) the holders of the Registerable Shares are
able to sell the Registerable Shares requested to be included in such
registration. The Demand Registration shall be made on a short
registration form (on Form S-3 or any similar short registration form)
whenever the Company is permitted under applicable rules promulgated by
the Securities and Exchange Commission to use such short form.
Within 30 days after receipt of the request set forth above,
the Company will give written notice of such request to the Accredited
Investor and will include in such registration all shares with respect
to which the Company has received a written request for inclusion
therein from such Accredited Investor within 15 days after the
Company's notice is mailed.
(2) Whenever the Company proposes to register (either on its
own behalf or on behalf of holders of its equity securities other than
the holders of Registerable Shares in their capacity as holders of the
Registerable Shares) any of its equity securities under the 1933 Act
including the shares sold to the Accredited Investor (other than
pursuant to registrations of equity securities to be sold under one or
more of the Company's employee benefit plans on Form S-8), and the
registration form to be used may be used for a registration of the
Registerable Shares, the Company will give prompt written notice to all
holders of the Registerable Shares of its intention to effect such a
registration and will include in such registration all Registerable
Shares with respect to which the Company has received written request
by the holders thereof for inclusion therein within 30 days after the
mailing of the Company's notice. Any registrations requested pursuant
to this paragraph (5)(a)(2) are referred to herein as "Piggyback
Registrations".
2. Section 5(b) of the Subscription Agreement is hereby amended, and as
amended, shall read as follows:
(b) The Demand Registration
(1) Priority of Demand Registration
The Company will not include in the Demand Registration
any other of its equity securities without the written consent of the
holders of a majority of the Registerable Shares requesting such
registration. If a Demand Registration is an underwritten offering,
and the managing underwriters of such offering advise the Company in
writing that, in their opinion, the number of Registerable Shares, the
shares requested to be included by the Accredited Investor and other
equity securities to be included, exceeds the number of Registerable
Shares, the shares requested to be included by the Accredited Investor
and other equity securities which can be sold in such offering, the
Company will include in such registration prior to the inclusion of the
Registerable Shares and any other of the Company's equity securities,
the shares requested to be sold by the Accredited Investor without
regard to the inclusion of any Registerable Shares and/or other equity
securities. If in the opinion of the managing underwriters a number of
Registerable Shares requested to be included in such registration can
be sold, such Registerable Shares shall be included, pro rata among the
respective holders based on a fraction, with respect to each holder,
the numerator of which is the number of Registerable Shares requested
to be sold by such holder, and the denominator of which is the number
of Registerable Shares requested to be included in such Demand
Registration by all holders of the Registerable Shares.
(2) Restrictions on Demand Registration.
The Company will not be obligated to effect more than
two Demand Registrations and shall be so obligated only if the holders
of the majority of the Registerable Shares so request such
registration. Further, the Company will not be obligated to effect the
Demand Registration within three months after the effective date of a
registration in which the holders of the Registerable Shares exercised
their "piggyback registration" rights pursuant to paragraph (5)(a)(2)
hereof.
(3) Selection of Underwriters
The Company shall have the exclusive right to select the
underwriter(s), including the exclusive right to designate the managing
underwriter(s), with respect to the Demand Registration offering.
Nothing herein shall prevent the holders of the Registerable Shares who
have requested the Demand Registration from submitting a
recommendation(s) with respect to any underwriters and/or managing
underwriters.
(4) Expenses of the Demand Registration
The Company shall pay all expenses incident to the
Demand Registration, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses, 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 in connection
with the Demand Registration. The holders of the Registerable Shares
requesting the Demand Registration will be required to pay their pro
rata share of any underwriter and/or brokerage commissions,
attributable to the inclusion of the Registerable Shares in the Demand
Registration.
3. Section 5(c) of the Subscription Agreement is hereby amended, and as
amended, shall read as follows:
(c) Piggyback Registration.
(1) Priority on Primary Registrations.
If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, and the managing underwriters
advise the Company in writing that, in their opinion, the number of
equity securities requested to be included in such registration exceeds
the number which can be sold in such offering, the Company will include
in such registration (i) the equity securities the Company proposes to
sell, (ii) the Accredited Investor's shares and the Registerable Shares
requested to be included in such Piggyback Registration, pro rata among
the holders thereof based upon a fraction, with respect to each holder,
the numerator of which is the number of the shares requested to be sold
by such holder, and the denominator of which is the total number of the
Accredited Investor's and the Registerable Shares requested to be
included in such Piggyback Registration by the Accredited Investor and
all holders of the Registerable Shares and (iii) any other equity
securities requested to be included in such registration.
(2) Priority on Secondary Registrations.
If a Piggyback Registration is an underwritten secondary
registration on behalf of holders of the Company's equity securities
(other than the Accredited Investor and the holders of the Registerable
Shares in their capacity as holders of the Registerable Shares), and
the managing underwriters advise the Company in writing that, in their
opinion, the number of equity securities requested to be included in
such registration exceeds the number which can be sold in such
offering, the Company will include in such registration (i) the equity
securities to be sold in the secondary offering by the holders of the
Company's equity securities, (ii) the Accredited Investor's and the
Registerable Shares requested to be included in such Piggyback
Registration, pro rata among the holders thereof based upon a fraction,
with respect to each holder, the numerator of which is the number of
shares requested to be sold by such holder, and the denominator of
which is the total number of the Accredited Investor's and the
Registerable Shares requested to be included in such Piggyback
Registration by the Accredited Investor and by all holders of
Registerable Shares, and (iii) any other equity securities requested to
be included in such registration.
(3) Expenses of Piggyback Registrations
The Company shall pay all expenses incident to the
Piggyback Registration, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses, and
fees and disbursements of counsel for the Company and all independent,
certified public accountants, underwriters (excluding discounts and
commissions) and any other persons retained by the Company in
connection with such Piggyback Registrations. The holders of the
Registerable Shares requesting the Piggyback Registration will be
required to pay their pro rata share of any underwriter and/or
brokerage commissions attributable to the inclusion of the Registerable
Shares in the Piggyback Registration.
IN WITNESS WHEREOF, the Purchaser has executed and delivered this
Amendment No. 1 to the Subscription Agreement as of this day of September,
---
1995.
-------------------------------- -------------------------------------
Signature of Subscriber Residence and/or Business Address
-------------------------------- -------------------------------------
Typed or Printed Name City State Zip
Social Security or Tax
Identification No. of Subscriber
ACCEPTED:
XXXX, INC.
Dated: By:
------------------------ -------------------------------------
Xxxxxx X. Xxxxxxxxxxx
President and Chief Executive
Officer
