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EXHIBIT 4.3.2
AMENDMENT TO REGISTRATION
RIGHTS AGREEMENT
This Amendment to Registration Rights Agreement ("Amendment") is made
as of July 31, 1992, by and among E-Z Serve Corporation, a Delaware Corporation
(the "Company"), and Phemus Corporation, a Massachusetts corporation ("Phemus")
and Intercontinental Mining & Resources Limited, a British Virgin Islands
limited partnership ("IMR Limited").
WHEREAS, the Company, Phemus and IMR Limited entered into that certain
Registration Rights Agreement dated as of March 25, 1992 (the "Agreement");
WHEREAS, the Company has issued to Phemus and IMR warrants (the "D
Warrants") to purchase an aggregate of 30,000 shares of the Company's Series D
Convertible Preferred Stock, par value $0.01 per share (the "Series D
Preferred") and the D Warrants also provide for the issuance to Phemus and IMR
of the Company's Common Stock, par value $0.01 per share;
WHEREAS, the parties desire to amend the Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Section 1.1(b) of the Agreement is hereby amended in its
entirety to be as follows:
(b) The term "Registrable Securities" means (1) the
Common Stock issued or issuable upon the conversion of the
Shares, (2) the Common Stock issued or issuable upon the
exercise of the Warrants issued pursuant to that certain
Warrant Purchase Agreement dated as of July 15, 1992, by and
among the Company, Phemus, and Intercontinental Mining &
Resources Incorporated, a British Virgin Islands corporation
("IMR Inc."), (3) the Common Stock issued or issuable upon the
conversion of the Series D Preferred which is issued or
issuable upon the exercise of the D Warrants, (4) the Common
Stock issued or issuable pursuant to the D Warrants, and (5)
any Common Stock of the Company issued (or issuable upon the
conversion or exercise of any warrant, right, or other
security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such
securities described in (1), (2), (3) or (4) of this
paragraph; provided, however, that any shares previously sold
to the public pursuant to a registered public offering or
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pursuant to an exemption from the registration requirements of
the 1933 Act shall cease to be Registrable Securities;
2. Section 1.7 of the Agreement is hereby amended in its entirety
to be as follows:
1.7 Underwriting Requirements. In connection
with any offering involving an underwriting of securities
being issued by the Company, the Company shall not be required
under Section 1.3 to include any of the Holders' securities in
such underwriting unless they accept the terms of the
underwriting as agreed upon between the Company and the
underwriters selected by it, and then only in such quantity,
if any, as will not, in the opinion of the underwriters,
jeopardize the success of the offering by the Company. If the
managing underwriter for the offering shall advise the Company
in writing that the total amount of securities, including
Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities to
be sold other than by the Company that can be successfully
offered, then the Company shall be required to include in the
offering only that number of such securities, including
Registrable Securities, which the managing underwriter
believes will not jeopardize the success of the offering,
provided, however, that the number of Registrable Securities
to be included in the offering shall not be reduced unless the
securities to be included in such offering for the account of
any person other than the Company are also reduced on a pro
rata basis provided, however, that in no event shall the
amount of securities of (i) the selling Holders and (ii) any
other parties pursuant to Section 1.7 of the Registration
Rights Agreement dated July 31, 1992, between the Company and
Tenacqco Bridge Partnership as in effect on the date hereof,
included in the offering be reduced below 50% (fifty percent)
of the total amount of securities included in such offering.
For purposes of apportionment pursuant to this Section 1.7,
for any selling Holder which is a partnership or a
corporation, the partners, retired partners and shareholders
of such Holder, or the estates and family members of such
partners and retired partners and any trusts for the benefit
of any of the foregoing persons, shall collectively with such
Holder be deemed to be one 'selling Holder', and any pro rata
reduction with respect to such 'selling Holder' shall be based
upon the aggregate amount of shares carrying registration
rights owned by entities and individuals included in
such 'selling Holder', as defined in this sentence.
3. Exhibit A to the Agreement is hereby amended to include IMR
Inc., and IMR Inc. will be considered an "Investor" for all
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purposes under the Agreement, entitled to all benefits and
subject to all obligations thereunder as are other Investors.
Except as expressly amended herein, the Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first above written.
E-Z SERVE CORPORATION
By: /s/ John T. Miller
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Name: John T. Miller
Title: Senior Vice President
PHEMUS CORPORATION
By: /s/ Michael Eisenson
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Name: Michael Eisenson
By:
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Name:
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INTERCONTINENTAL MINING & RESOURCES LIMITED
By: /s/ Jeffrey A. Fromm
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Name: Jeffrey A. Fromm
Title: Vice President
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