AMENDMENT TO UNIT PURCHASE AGREEMENT AND REGISTRATION RIGHTS AGREEMENT
EXHIBIT
4.2
AMENDMENT
TO
UNIT
PURCHASE AGREEMENT
AND
REGISTRATION
RIGHTS AGREEMENT
THIS
AMENDMENT TO UNIT PURCHASE AGREEMENT AND REGISTRATION RIGHTS AGREEMENT (the
“Amendment”) is dated effective as of October 15, 2003 by and among
21st
Century
Holding Company, a Florida corporation (the “Company”), ▇. ▇▇▇▇▇▇▇▇ Securities,
LLC (the “Placement Agent”), and the holders of the Company’s 6% Senior
Subordinated Notes due July 31, 2006 (the “Notes”) as set forth on Schedule
A
hereto
(collectively, the “Investors”).
RECITALS:
A.
The Company and the Investors entered into that certain Unit Purchase
Agreement dated July 31, 2003 (the “Unit Purchase Agreement”) pursuant to which
the Investors purchased the Notes and, in connection therewith, the Company,
the
Placement Agent and the Investors also entered into a Registration Rights
Agreement of even date therewith (the “Registration Rights
Agreement”).
B.
The parties now desire to modify and amend certain rights and obligations
of the parties under the Unit Purchase Agreement and the Registration Rights
Agreement.
AGREEMENT:
NOW,
THEREFORE, in consideration of the terms and conditions hereof, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1.
Capitalized
Terms.
Capitalized terms used but not defined in this Amendment shall have the
meanings as set forth in the Unit Purchase Agreement and the Registration Rights
Agreement, as applicable.
2.
Amendments
to Unit Purchase Agreement.
(a)
Section 7.1 of the Unit Purchase Agreement is hereby amended and restated
in its entirety as follows:
“7.1
Required
Payments.
(a)
Principal. The
principal amount of the Notes shall be due and payable in equal quarterly
installments commencing on October 31, 2003 with the last installment due on
July 31, 2006 (the date due of each quarterly installment is referred to herein
as a “Quarterly Payment Date” and the last Quarterly Payment Date on July 31,
2006 is referred to as the “Maturity Date”). Each principal payment shall
be paid in United States dollars or, to the extent legally permitted, in shares
of Common Stock (the “Principal Shares”), at the Company’s option; provided,
however, that the Company shall make principal payments in Principal Shares
only
to the extent provided in Section 12 hereof. If such principal payment is
paid in Principal Shares, then the number of Principal Shares to be issued
on
account of the principal payment shall be equal to (i) the amount of the
principal payment due divided by (ii) 95% of the weighted-average volume price
for the Common Stock on Nasdaq as reported by Bloomberg Financial Markets
(“Bloomberg”) for the 20 consecutive trading days prior to the Quarterly Payment
Date (the “Calculation Price”). In the event the Company elects to pay the
principal amount due in Principal Shares, (a) it shall notify the Holder of
its
election no later than 15 days prior to the commencement of the 20 consecutive
trading day period referenced above, (b) it shall issue the applicable Principal
Shares on the Quarterly Payment Date, and (c) it shall file a registration
statement covering resale of the applicable Principal Shares (the “Registration
Statement”) no later than two Business Days following the Quarterly Payment
Date.
1
(b)
Compensatory
Payment. If
a principal payment is made in Principal Shares and the weighted-average volume
price for the Common Stock on Nasdaq as reported by Bloomberg for the three
Business Day period ending on (and including) the date of effectiveness (the
“Effective Date”) of the applicable Registration Statement (the “Post-Issuance
Average Price”) is less than the Calculation Price, then the Company shall pay
to each holder of the Notes an amount equal to (i) the difference between the
Calculation Price and the Post-Issuance Average Price, multiplied by (ii) the
number of Principal Shares issued on the applicable Quarterly Payment Date.
Such amount shall be paid to each holder of the Notes in cash not later
than 10 Business Days following the Effective Date of the applicable
Registration Statement.”
(b)
Section 9.1 of the Unit Purchase Agreement is hereby amended and restated
in its entirety as follows:
“9.1
Required
Payments.
(a)
Interest.
The
principal amount of the Notes outstanding shall bear interest at the rate of
6%
per annum beginning on the date of issuance. Interest shall be payable
quarterly beginning on October 31, 2003. Each interest payment shall be
paid in United States dollars or, to the extent legally permitted, in shares
of
Common Stock (the “Interest Shares”), at the Company’s option; provided,
however, that the Company shall make interest payments in Interest Shares only
to the extent provided in Section 12 hereof. If such interest payment is
paid in Interest Shares, then the number of Interest Shares to be issued on
account of the interest payment shall be equal to (i) the amount of the interest
payment due divided by (ii) the Calculation Price. In the event the
Company elects to pay the interest amount due in Interest Shares, (a) it shall
notify the Holder of its election no later than 15 days prior to the
commencement of the 20 consecutive trading day period referenced in Section
7.1
above, (b) it shall issue the applicable Interest Shares on the Quarterly
Payment Date, and (c) it shall file the Registration Statement covering resale
of the applicable Interest Shares no later than two Business Days following
the
Quarterly Payment Date.
2
(b)
Compensatory
Payment. If
an interest payment is made in Interest Shares and the Post-Issuance Average
Price of the applicable Interest Shares is less than the Calculation Price,
then
the Company shall pay to each holder of the Notes an amount equal to (i) the
difference between the Calculation Price and the Post-Issuance Average Price,
multiplied by (ii) the number of Interest Shares issued on the applicable
Quarterly Payment Date. Such amount shall be paid to each holder of the
Notes in cash not later than 10 Business Days following the Effective Date
of
the applicable Registration Statement.”
3.
Amendments
to Registration Rights Agreement.
(a)
Section 4(a) of the Registration Rights Agreement shall be amended and
restated in its entirety as follows:
“(a)
The
parties acknowledge that as of the date of this Amendment, the Company has
filed
a Registration Statement on Form S-3 covering the resale of the Warrants and
the
Warrant Shares and a Registration Statement on Form S-1 relating to the
Principal Shares and Interest Shares. The parties agree that on or before
the date specified in clause (c) of Sections 7.1 and 9.1 of the Unit Purchase
Agreement, as amended, the Company will file an amendment to its Registration
Statement on Form S-1 to cover the resale of the Principal Shares and Interest
Shares to be issued by the Company in payment of the October 31, 2003 quarterly
payment due on the Notes, and that thereafter, the Company shall file in
subsequent quarters such additional registration statements (individually,
a
“Registration Statement,” and collectively, the “Registration Statements”) as
provided in Sections 7.1 and 9.1 of the Unit Purchase Agreement. No later
than five Trading Days prior to the anticipated effective date of each such
Registration Statement, the Company shall provide copies of same to the Holders
or their counsel, and shall provide the Holders with copies of any comment
letters received from the Commission with respect thereto within five Trading
Days of receipt thereof.
“The
Company shall use diligent best efforts to cause each Registration Statement
to
become effective within 60 days from the date of filing thereof. Each such
Registration Statement shall include all of the Registrable Securities then
issued and not covered by a previously filed Registration Statement, to the
extent permitted by the rules and interpretations of the Commission as then
in
effect, and shall include appropriate language regarding reliance upon Rule
416
to the extent permitted by the Commission. The Company will notify the
Holders and its transfer agent of the effectiveness of a Registration Statement
within five Trading Days of such event.”
3
(b)
Section 4(c) of the Registration Rights Agreement shall be amended by
deleting the third sentence thereof.
4.
Governing
Law.
This Amendment shall be interpreted in accordance with the laws of the
State of Florida.
5.
Effect
of Amendment.
Except as expressly set forth herein, the Unit Purchase Agreement and
Registration Rights Agreement shall remain unmodified and in full force and
effect pursuant to their respective terms and conditions.
6.
Counterparts.
This Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and
the same instrument.
[SIGNATURES
ON FOLLOWING PAGE]
4
The
parties have caused this Amendment to be executed and delivered on behalf of
each such party, effective as of the date set forth above.
| COMPANY: | ||
|
21st
CENTURY HOLDING COMPANY,
a Florida corporation
|
||
| |
|
|
| By: | //s// ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
||
| Title: Chairman | ||
| PLACEMENT AGENT: | ||
|
▇.
▇▇▇▇▇▇▇▇ SECURITIES, LLC,
a _____________ limited liability company*
|
||
| |
|
|
| By: | //s// ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
|
Name:▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
||
| Title: President | ||
| *Only as to Registration Rights Agreement | ||
| INVESTOR: | ||
| |
|
|
| Pandora Select Partners, LP | ||
| (Printed Name of Investor) | ||
| By: | //s// ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
||
| Title: Managing Member | ||
5
| INVESTOR: | ||
| |
|
Whitebox Hedged High Yield Partners, LP |
| (Printed Name of Investor) | ||
| By: | //s// ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
||
| Title:Managing Member | ||
| INVESTOR: | ||
| |
|
Whitebox Convertible Arbitrage Partners, LP |
| (Printed Name of Investor) | ||
| By: | //s// ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
||
| Title:Managing Member | ||
| INVESTOR: | ||
| |
|
SilverCreek Limited Partnership |
| (Printed Name of Investor) | ||
| By: | //s// ▇▇▇▇ ▇▇▇▇▇ | |
|
Name: ▇▇▇▇ ▇▇▇▇▇ |
||
| Title:VP of Manager | ||
| INVESTOR: | ||
| |
|
Newport Alternative Income Fund |
| (Printed Name of Investor) | ||
| By: | //s// ▇▇▇▇ ▇▇▇▇▇ | |
|
Name: ▇▇▇▇ ▇▇▇▇▇ |
||
| Title:VP of Manager | ||
6
| INVESTOR: | ||
| |
|
SilverCreek II Limited |
| (Printed Name of Investor) | ||
| By: | //s// ▇▇▇▇ ▇▇▇▇▇ | |
|
Name: ▇▇▇▇ ▇▇▇▇▇ |
||
| Title:VP of Manager | ||
| INVESTOR: | ||
| |
|
Coastal Convertibles LTD |
| (Printed Name of Investor) | ||
| By: | //s// ▇. ▇▇▇▇▇ | |
|
Name: ▇. ▇▇▇▇▇ |
||
| Title:Director / Member | ||
| INVESTOR: | ||
| |
|
Coastal Convertibles LTD |
| (Printed Name of Investor) | ||
| By: | //s// ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
||
| Title:Director / Member | ||
| INVESTOR: | ||
| |
|
OTAPE Investments LLC |
| (Printed Name of Investor) | ||
| By: | //s// ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
||
| Title:General Counsel | ||
| INVESTOR: | ||
| |
|
Omicron Master Trust |
| (Printed Name of Investor) | ||
| By: | //s// ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
||
| Title:Managing Member | ||
7
Schedule
A
|
Manager
|
Purchaser
(LEGAL
NAME TO BE PUT NOTE)
|
Number of Units
|
|
|
|
|
|
Whitebox Advisors
|
Pandora Select Partners, LP
Whitebox Hedged High Yield Partners, LP
Whitebox Convertible Arbitrage Partners, LP
|
1,000
2,000
2,000
|
|
SilverCreek
|
SilverCreek Limited Partnership
Newport Alternative Income Fund
SilverCreek II Limited
|
620
100
280
|
|
Tradewinds
|
Coastal Convertibles LTD
|
750
|
|
OTA
|
OTAPE Investments LLC
|
250
|
|
Omicron
|
Omicron Master Trust
|
500
|
A-1