EXHIBIT 10.40
AMENDMENT NO. 2 TO
REGISTRATION RIGHTS AGREEMENT (EKI)
This Amendment No. 2 to Registration Rights Agreement (the "Amendment")
is made and entered into as of November 3, 1997 by and among EarthShell
Container Corporation, a Delaware corporation (the "Company"), E. Khashoggi
Industries, LLC, a Delaware limited liability company ("EKI").
WHEREAS, the parties hereto or their successors in interest previously
entered into that certain Registration Rights Agreement dated as of February
28, 1995, as amended (the "Registration Rights Agreement"), providing certain
registration rights to EKI for shares of Common Stock of the Company issued to
EKI; and
WHEREAS, in connection with the proposed initial public offering of
shares of common stock of the Company (the "IPO"), the managing underwriters
in the IPO have advised the Company that in order to effect the successful
and orderly distribution of shares of common stock in the IPO, it is in the
best interests of the Company and its stockholders that all stockholders, if
participating in the IPO, agree not to sell any equity securities of the
Company for a period of 270 days following the consummation of the IPO and
all stockholders, if not participating in the IPO, agree not to sell any
equity securities of the Company for a period of 180 days following the
consummation of the IPO; and
WHEREAS, the Registration Rights Agreement, as currently in effect, only
provides for a lock-up period of 180 days from stockholders selling in the
offering and no lock-up whatsoever from stockholders not selling in the
offering; and
WHEREAS, in order to extend the lock-up period as described above days
and extend the lock-up to all stockholders party to the Registration Rights
Agreement, the parties hereto desire to amend the Registration Rights
Agreement as provided below. Capitalized terms used herein and not otherwise
defined shall have the meaning ascribed to them in the Registration Rights
Agreement.
NOW, THEREFORE, in consideration of the premises and covenants contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Section 4(a) of the Registration Rights Agreement is deleted in
its entirety and the following new Section 4(a) is substituted therefor:
(a) RESTRICTIONS ON PUBLIC SALE BY HOLDER OF REGISTRABLE
SECURITIES. Each holder of Registrable Securities whose Registrable
Securities are covered by a Registration Statement filed pursuant to
Section 3 hereof agrees, if requested by the managing underwriters in an
Underwritten Offering, not to effect any sale or other distribution of
equity securities of the Company, including any sale pursuant to Rule
144 under the Securities Act (except as part of such Underwritten
Registration), during the 10-day period prior to, and during the 180-day
period beginning with, the effectiveness of such Registration Statement,
to the extent timely notified in writing by the Company or the managing
underwriters. Notwithstanding the provisions of the preceding sentence,
in the case of the first public offering of Common Stock pursuant to an
effective Registration Statement under the Securities Act for the
account of the Company at the aggregate offering price in excess of
$35,000,000, each
holder of Registrable Securities agrees, if requested by the managing
underwriters in such an Underwritten Offering, not to effect any sale or
other distribution of equity securities of the Company, including any
sale pursuant to Rule 144 under the Securities Act (except as part of
such Underwritten Registration), during the 10-day period prior to, and
if purchasing or selling shares of Common Stock in such offering during
the 270-day period beginning with, or if neither purchasing nor selling
shares of Common Stock in such offering during the 180-day period
beginning with, the effectiveness of the Registration Statement relating
to such Underwritten Registration, to the extent timely notified in
writing by the Company or the managing underwriters.
2. Except as modified by this Amendment, the Registration Rights
Agreement shall remain unchanged and shall remain in full force and effect.
3. Pursuant to Section 10(b) of the Registration Rights Agreement,
this Amendment shall become effective upon the receipt by the Company of
executed consents to this Amendment from the holders of at least a majority
of the Registrable Securities.
4. This Amendment may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
5. This Amendment shall be governed by and construed in accordance
with the internal laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
EARTHSHELL CONTAINER CORPORATION
By:/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
---------------------------------
Title: CEO
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E. KHASHOGGI INDUSTRIES, LLC, a
Delaware limited liability company
By: E. Khashoggi Industries, Inc.,
its General Partner
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxx
---------------------------
Title:
--------------------------
By: Concrete Technology Corporation,
its Member
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
---------------------------
Title: CEO
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By its execution below, the Company certifies that it has received
consents to this Amendment from the holders of a majority of the Registrable
Securities, as provided in Section 10(b) of the Registration Rights
Agreement, and pursuant thereto this Amendment has become effective.
EARTHSHELL CONTAINER CORPORATION
By:/s/ D. Xxxxx Xxxxxxx
-----------------------------------
Name: D. Xxxxx Xxxxxxx
---------------------------------
Title: CFO
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