FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
FIRST
AMENDMENT TO
This
First Amendment to Registration Rights Agreement (this “Amendment”),
dated
January 18, 2008, amends that certain Registration Rights Agreement, dated
September 28, 2007 (the “Rights
Agreement”),
by
and between MDwerks, Inc., a Delaware corporation (the “Company”),
and
Vicis Capital Master Fund,
a
series of the Vicis Capital Master Trust, a trust formed under the laws of
the
Cayman Islands
(the
“Purchaser”).
R
E C
I T A L S
WHEREAS,
the Company and the Purchaser have entered into a Securities Purchase Agreement
dated the date hereof (the “Purchase
Agreement”).
WHEREAS,
as
an
inducement for the Purchaser’s acquisition of the securities under the Purchase
Agreement, the Company has agreed to amend the Rights Agreement to include
as
registrable securities under the Rights Agreement the shares of Common Stock
of
the Company issuable upon conversion or exercise of the securities acquired
by
the Purchaser under the Purchase Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby amend the
Rights Agreement and otherwise agree as follows:
1. Amendments.
(a)
The
first recital in the Rights Agreement is hereby amended and restated in it
entirety to read as follows:
“WHEREAS,
in connection with the Securities Purchase Agreement, dated September 28, 2007,
by and between the Company and Purchaser (the “September Purchase Agreement”),
and the Securities Purchase Agreement, dated January 18, 2008, by and between
the Company and the Purchaser (the “January Purchase Agreement”), the Company
has agreed, upon the terms and subject to the conditions set forth in the
September Purchase Agreement and the January Purchase Agreement, to issue and
sell to the Purchaser (i) shares of the Company’s Series B Convertible Preferred
Stock, par value $0.001 per share (the “Preferred Shares”), which will, among
other things, be convertible into shares of the Company’s common stock , par
value $0.001 per share (the “Common Stock”) (as converted, the “Conversion
Shares”) in accordance with the terms of the Preferred Shares, and (ii) warrants
(the “Warrants”) which will be exercisable to purchase a number of shares of
Common Stock in accordance with the terms of the Warrants (as exercised
collectively, the “Warrant Shares”).”
(b)
The
following definitions contained in the Rights Agreement are hereby added or
amended as follows (deletions
have been stricken and additions are in bold):
.
. .
.
“Preferred
Shares”
shall have the meaning ascribed to it in the Preamble and shall include all
shares of Series B Convertible Preferred Stock of the Company hereafter acquired
by the Purchaser.
.
. . .
“Registrable
Securities”
means
(i) all
shares
of Common Stock issuable upon conversion of the Series
B Convertible
Preferred
Stock of the Company held
by a Holder,
including any dividends paid thereon, and (ii) all
shares
of Common Stock issuable upon exercise of the Series
F and Series G
Warrants
held
by a Holder.
.
. .
.
“Warrants”
means
the Series
F and Series G Warrants
to
purchase shares of Common Stock issued to the Purchaser pursuant to either
the
September
Purchase
Agreement,
the January Purchase Agreement and
all
Series F and Series G Warrants hereafter acquired by the Purchaser.
.
. . .
2. Ratification.
Except
as expressly amended by this Amendment, the terms and conditions of the Rights
Agreement are hereby confirmed and shall remain in full force and effect without
impairment or modification.
3. Conflict.
In the
event of any conflict between the Rights Agreement and this Amendment, the
terms
of this Amendment shall govern.
4. Certain
Defined Terms.
Capitalized terms used but not defined herein shall have the meanings given
to
such terms in the Rights Agreement.
5. Binding
Effect.
The
parties acknowledge and agree that this Amendment complies with all of the
applicable terms and conditions set forth in Section 7(f) of the Rights
Agreement that are necessary to effect an amendment to the Rights Agreement
that
binds the parties and therefore, upon the execution and delivery hereof by
the
parties, this Amendment shall have such binding effect.
6. Governing
Law.
This
Amendment shall be governed by, and construed in accordance with, the laws
of
the State of New York, without giving effect to applicable principles of
conflicts of law that would require the application of the laws of any other
jurisdiction.
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7. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed to be an original, and all of which taken together shall constitute
one
and the same instrument.
IN
WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
by
their respective authorized representatives as of the day and year first above
written.
MDWERKS, INC. | ||
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By: | /s/ Xxxxxx X. Xxxx | |
Name: Xxxxxx X. Xxxx |
||
Title: Chief Executive Officer |
PURCHASER: | ||
VICIS CAPITAL MASTER FUND | ||
By: Vicis Capital LLC | ||
|
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By: | /s/ Xxxxx X. Xxxxxx | |
Name: Xxxxx X. Xxxxxx |
||
Title: Chief Financial Officer |
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