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EXHIBIT 3
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AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), dated as of December 31, 1997, is by and among ▇▇▇▇▇▇▇ EQUITY FUND
I, L.L.C., a Georgia limited liability company (the "Purchaser"), and CROWN
NORTHCORP, INC., a Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, Purchaser and the Company are parties to that certain Stock
Purchase Agreement, dated as of March 7, 1997, as amended on October 2, 1997,
and as further amended by that certain Amendment No. 2 to Stock Purchase
Agreement of even date herewith between and among Purchaser, the Company, and as
to Section 5 thereof, ▇▇▇▇▇▇ Holding Company, Ltd. ("▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, as such Amendment No. 2 was further amended by that certain Amendment No.
1 to Amendment No. 2 to Stock Purchase Agreement, dated as of January 8, 1998 to
be effective as of December 31, 1997, between and among Purchaser, the Company,
▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇"), and as such Amendment No. 2 was further
amended by that certain Amendment No. 2 to Amendment No. 2 to Stock Purchase
Agreement, dated as of January 13, 1998 to be effective as of December 31, 1997,
between and among Purchaser, the Company, ▇▇▇▇▇▇, and ▇▇▇▇▇ (collectively, the
"Second Amendment"); and
WHEREAS, pursuant to the Second Amendment, Purchaser has agreed to
purchase from the Company, and the Company has agreed to sell to Purchaser, one
share of the Series AA Convertible Preferred Stock, par value $.01 per share, of
the Company (the "Series AA Preferred Stock") on the date hereof; and
WHEREAS, the Purchaser and the Company previously entered into a
Registration Rights Agreement, dated March 7, 1997 (the "Original Agreement"),
and desire to amend the Original Agreement so that it encompasses the Common
Stock issuable upon conversion of the Series AA Preferred Stock (the "Conversion
Common Stock");
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt, adequacy, and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used herein but not
otherwise defined herein shall have the meanings ascribed thereto in the
Original Agreement.
SECTION 2. AMENDMENT OF THE DEFINED TERM "SHARES." The definition of
the defined term "Shares" set forth in Section 1 of the Original Agreement is
hereby amended in its entirety to read in its entirety as follows:
""SHARES" means (i) the shares of Common Stock purchased by the
Purchaser from the Company at any time and from time to time pursuant to the
Stock Purchase Agreement, and
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(ii) the shares of Common Stock issuable upon conversion of the Company's Series
AA Convertible Preferred Stock, par value $.01 per share."
SECTION 3. ADDITION OF NEW SECTION 8. The Original Agreement is hereby
amended by inserting the following new Section 8 after the end of Section 7 of
the Original Agreement and prior to the signature clause of the Original
Agreement:
"SECTION 8. RESIGNATION OF DIRECTORS. Notwithstanding any provision of
this Agreement to the contrary, capitalized terms used in this Section 8 but not
defined in this Section 8 shall have the meanings ascribed thereto in that
certain Certificate of Designation of the Company establishing its Series AA
Convertible Preferred Stock, par value $.01 per share, as filed with the Office
of the Secretary of State of the State of Delaware on January __, 1998 (the
"Certificate of Designation"). Pursuant to the Certificate of Designation, if
the Series AA Preferred Stock is outstanding on June 30, 1998 and has not been
satisfied in full before June 30, 1998, and, on that date, both of the Trigger
Events have not occurred, then for so long as the Purchaser is the owner and
holder of record of the Series AA Preferred Stock, the Purchaser has the right
to designate such number of individuals to serve as Directors of the Company as
shall constitute a majority of the Company's Board of Directors until such time
as both of the Trigger Events have occurred, the Series AA Preferred Stock is no
longer outstanding, or satisfaction in full of the Series AA Preferred Stock.
The Purchaser irrevocably agrees that, without limiting its rights pursuant to
the Stock Purchase Agreement, as amended from time to time, it will promptly
cause each of the Directors of the Company which it has so designated to resign
as a Director of the Company upon the earlier of (x) the occurrence of both of
the Trigger Events, and (y) the Purchaser ceasing to be the owner and holder of
record of all of the Series AA Preferred Stock or the satisfaction in full of
the Series AA Preferred Stock."
SECTION 4. MISCELLANEOUS
(a) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified, or supplemented, and
waivers or consents to departure from the provisions thereof may not be given,
without the prior written consent of the parties hereto.
(b) NOTICES. Any notice, demand, request, consent, approval,
declaration, or other communication hereunder to be made pursuant to the
provisions of this Agreement, shall be sufficiently given or made if in writing
and either delivered in person with receipt acknowledged or sent by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
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(i) If to any Holder or to the Purchaser:
Harbert Equity Fund I, L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(ii) If to the Company:
Crown NorthCorp, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
With a copy to:
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
The giving of any notice required hereunder may be waived in writing by the
party entitled to receive such notice. Every notice, demand, request, consent,
approval, declaration, delivery, or other communication hereunder shall be
deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, or three (3) business days after the same
shall have been deposited in the United States mail.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties hereto. This Agreement may be assigned by the Company to any successor
to the Company without the consent of any Holder. This Agreement may not
otherwise be assigned by the Company without the prior written consent of the
Purchaser, which consent shall not be unreasonably delayed or withheld. Subject
to compliance with any applicable securities laws, the Purchaser may assign all
or any part of its rights hereunder in connection with any transfer, assignment,
sale or conveyance of all or any portion of its Registrable Securities.
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(d) HEADINGS. The headings in this Agreement are for convenience of
reference only, and shall not limit or otherwise affect the meaning thereof.
(e) GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Delaware, without regard to the conflict of law provisions thereof.
(f) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(g) ENTIRE AGREEMENT. This Agreement represents the complete agreement
and understanding of the parties in respect of the subject matter contained
herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter hereof.
(h) ARBITRATION AND LITIGATION. (i) Subject to clauses (ii) and (iii)
hereof, all disputes relating to this Agreement may be settled by arbitration in
Atlanta, Georgia before a single arbitrator pursuant to the rules of the
American Arbitration Association (the "Rules"). Arbitration may be commenced at
any time by any party hereto giving notice to the other parties hereto that are
parties to a dispute that such dispute has been referred to arbitration pursuant
hereto. The arbitrator shall be selected by agreement of the Purchaser and the
Company, but if they do not so agree within 20 days after the date of the notice
referred to above, the selection shall be made pursuant to the Rules from the
panel or arbitrators maintained by the Association. Any award rendered by the
arbitrator shall be conclusive and binding upon the parties hereto; provided,
however, that any such award shall be accompanied by a written opinion of the
arbitrator giving the award. This provision shall be specifically enforceable by
the parties and the decision of the arbitrator in accordance herewith shall be
final and binding, and there shall be no right of appeal therefrom. Each party
shall pay its own expense of arbitration and the expenses of the arbitrator
shall be equally shared; provided, however, that if in the opinion of the
arbitrator any party to the arbitration has raised a frivolous claim, defense,
or objection, then the arbitrator may assess, as a part of his award, all or any
part of the arbitration expenses of the other parties (including reasonable
attorney's fees) against the party raising such frivolous claim, defense, or
objection.
(ii) To the extent that arbitration may not be legally permitted
hereunder or the parties to any dispute hereunder may not at the time of such
dispute mutually agree to submit such dispute to arbitration, any party may
commence a civil action in a court of appropriate jurisdiction to resolve
disputes hereunder. None of the provisions hereof shall prevent the parties from
settling any dispute by mutual agreement at any time.
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(iii) Any non-arbitration action, suit, or proceeding arising out of,
based upon, or in connection with this Agreement or the transactions
contemplated hereby may be brought only in a United States District Court
located in the State of Georgia and each party covenants and agrees not to
assert, by way of motion, as a defense, or otherwise, in any such action, suit,
or proceeding, any claim that it is not subject personally to the jurisdiction
of such court, that its property is exempt or immune from attachment or
execution, that the action, suit, or proceeding is brought in an inconvenient
forum, that the venue of the action, suit, or proceeding is improper, or that
this Agreement or the subject matter hereof may not be enforced in or by such
court.
(i) RATIFICATION. Each of the parties hereto hereby ratifies, confirms,
and agrees that the Original Agreement, as amended hereby, continues to be in
full force and effect, as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
▇▇▇▇▇▇▇ EQUITY FUND I, L.L.C.
BY: ▇▇▇▇▇▇▇ MANAGEMENT CORPORATION,
MANAGER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
CROWN NORTHCORP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief Executive
Officer
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