Exhibit 10.25
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
effective as of February 16, 2001
This First Amendment (this "Amendment"), effective as of February 16, 2001,
to the REGISTRATION RIGHTS AGREEMENT, dated as of March 30, 1999 (the
"Registration Rights Agreement"), among Xxxxxx Technologies, Inc., a New York
corporation (the "Company"), Xxxxxxx US Discovery Fund III, L.P. and Xxxxxxx US
Discovery Offshore Fund III, L.P. (collectively, the "Xxxxxxx Funds").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Xxxxxxx Funds are parties to the Registration
Rights Agreement;
WHEREAS, pursuant to the Stock Purchase Agreements, dated as of March 30,
1999, between the Company and each of the Xxxxxxx Funds (the "Stock Purchase
Agreements"), the Xxxxxxx Funds purchased 65,000 shares of the Company's Series
A Convertible Preferred Stock, par value $.01 per share (the "Series A Preferred
Stock");
WHEREAS, the Company and the Xxxxxxx Funds entered into Stock Purchase
Agreements, dated as of February 16, 2001 (the "2001 Stock Purchase
Agreements"), whereby the Xxxxxxx Funds purchased 30,000 shares of the Company's
Series A Convertible Preferred Stock, par value $.01 per share; and
WHEREAS, pursuant to Section 11.4 of the Registration Rights Agreement, the
Company and the Xxxxxxx Funds desire to (a) amend the first WHEREAS clause in
the Registration Rights Agreement to include the shares purchased pursuant to
the 2001 Stock Purchase Agreements, (b) amend the second WHEREAS clause in the
Registration Rights Agreement to reflect the inclusion of the 2001 Stock
Purchase Agreements and (c) amend the definition of "Stock Purchase Agreements"
in the Registration Rights Agreement to include the 2001 Stock Purchase
Agreements;
NOW, THEREFORE, in consideration of the foregoing and of the covenants and
agreements contained herein and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Registration Rights Agreement. Capitalized
terms defined in this Amendment shall be deemed to be defined in the
Registration Rights Agreement with the meaning
given to them herein. In the event of any inconsistency between the definitions,
terms or provisions of this Amendment and of the Registration Rights Agreement,
this Amendment shall control.
2. The first WHEREAS clause of the Registration Rights Agreement is hereby
deleted and replaced in its entirety with the following:
"WHEREAS, pursuant to the terms of Stock Purchase Agreements, dated as of
March 30, 1999, and the Stock Purchase Agreements, dated as of February [
], 2001 (the "2001 Stock Purchase Agreements"), the Xxxxxxx Funds have
purchased 65,000 shares and 30,000 shares, respectively, of the Company's
Series A Preferred Stock, par value $.01 per shares."
3. The second WHEREAS clause of the Registration Rights Agreement is hereby
deleted and replaced in its entirety with the following:
"WHEREAS, (a) it was a condition of the transactions contemplated by the
Stock Purchase Agreements and (b) it is a condition to the transactions
contemplated by the 2001 Stock Purchase Agreements, that the Company and
Xxxxxxx enter into this Agreement whereby the Company shall grant, and the
Investors shall obtain, the rights relating to the registration of the
Registrable Securities under the Securities Act, as set forth in this
Agreement;"
4. The definition of "Stock Purchase Agreements" is hereby deleted and
replaced in its entirety with the following:
""Stock Purchase Agreements" means, collectively, the separate Stock
Purchase Agreements, dated as of March 30, 1999, between the Company and
each of the Xxxxxxx Funds, and the 2001 Stock Purchase Agreements."
5. Section 11.6(d)(ii) is hereby deleted and replaced in its entirety with
the following:
"If to the Company, to:
Xxxxxx Technologies, Inc.
000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxxxx
with a copy to:
Blank Rome Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Ethan Seer, Esq.
6. The Registration Rights Agreement shall remain in full force and effect
in accordance with its terms, except as expressly amended hereby.
7. This Amendment may be executed in one or more counterparts, which
together will constitute a single agreement.
8. This Amendment shall be governed by and construed in accordance with the
laws of the State of New York.
9. This Amendment, together with the Registration Rights Agreement and all
agreements or documents herein or therein referred or incorporated by reference
contains the entire agreement between the parties with respect to the subject
matter hereof and supersedes any and all prior agreements and understandings,
oral or written, with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the
date first written above.
XXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name:
Title:
XXXXXXX US DISCOVERY FUND III, L.P.
By: XXXXXXX US DISCOVERY
PARTNERS, L.P.,
its general partner
By: XXXXXXX US DISCOVERY, LLC, its
general partner
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Xxxxxx X. Xxxx, member
XXXXXXX US DISCOVERY OFFSHORE
FUND III, L.P.
By: XXXXXXX US DISCOVERY
PARTNERS, L.P.,
its general partner
By: XXXXXXX US DISCOVERY, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxx
----------------------------
Xxxxxx X. Xxxx, member
