Exhibit 99.5
AMENDMENT NO. 1
TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT,
dated as of March 29, 2001 ( "Amendment"), by and among NEW WORLD COFFEE -
MANHATTAN BAGEL, INC., a Delaware corporation (the "Company") and the holders of
certain warrants listed on Schedule I hereto (the "Stockholders"), amending the
Amended and Restated Registration Rights Agreement dated as of January 18, 2001
(as heretofore amended, the "Registration Rights Agreement"), among the Company
and the Stockholders, which amended and restated the Registration Rights
Agreement dated as of August 11, 2000, by and between the Company, BET
Associates, L.P., and Brookwood New World Investors, LLC. Capitalized terms used
herein without definition shall have the meanings set forth in the Registration
Rights Agreement.
Background
----------
On March 29, 2001, the Company and Xxxxxxx Xxxxx III, L.P. ("Xxxxxxx
Xxxxx") entered into the Second Series F Preferred Stock and Warrant Purchase
Agreement (the "Second Purchase Agreement"), pursuant to which, among other
things, Xxxxxxx Xxxxx purchased an additional 5,000 shares of Series F Preferred
Stock, $.001 par value, of the Company, at a purchase price of $1,000.00 per
share and the Company delivered warrants in the form attached to the Second
Purchase Agreement (the "Additional Warrants") and agreed to issue in the future
certain warrants in similar form. The Company has agreed to grant to Xxxxxxx
Xxxxx certain registration rights with respect the shares issuable upon exercise
of the additional warrants issued pursuant to the Second Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Amendments.
----------
(a) Section 1 of the Registration Rights Agreement is hereby amended
by adding the following definition thereto:
"The term "Additional Warrants" means the warrants issued
pursuant to and in the form attached to the Second Series F
Preferred Stock and Warrant Purchase Agreement dated as of
March 29, 2001."
(b) Section 1.1(e) of the Registration Rights Agreement is hereby
amended to read in its entirety as follows:
"The term "Registrable Securities" means the shares of Common
Stock issued or issuable (i) upon exercise of the Warrants and
the Additional Warrants; and (ii) any securities of the
Company issued or issuable in exchange for, or in replacement
of the Common Stock, excluding shares of Common Stock which
may be immediately sold under Rule 144."
(c) The Registration Rights Agreement is hereby amended by deleting
Schedule I in its entirety and replacing it with Schedule I attached hereto.
2. The Registration Rights Agreement, as amended by this Amendment, is
hereby in all respects confirmed and each of the parties hereto acknowledges and
agrees that it is bound by all the terms and provisions thereof, as amended
hereby.
3. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to conflict of laws
principles.
4. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
2
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as a sealed instrument, all as of the day and year first above
written.
COMPANY: NEW WORLD COFFEE - MANHATTAN
BAGEL, INC.
By /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
STOCKHOLDERS: XXXXXXX XXXXX III, L.P.
By: Xxxxxxx Xxxxx & Company V, L.L.C.,
General Partner
By
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
BET ASSOCIATES, L.P.
By: BRU Holding Co., LLC
Its General Partner
By:
---------------------------------
Name:
Title:
BROOKWOOD NEW WORLD INVESTORS LLC
By: Brookwood New World Co., LLC,
Its Managing Member
By:
---------------------------------
Name:
Title:
SCHEDULE I
STOCKHOLDERS
Series F
Stockholder Preferred Stock Warrant
----------- --------------- -------
Xxxxxxx Xxxxx III, L.P. 25,000,000 10,605,140
BET Associates, L.P. 8,213.01 3,263,178
Brookwood New World Investors, LLC 8,185.32 3,263,178
