AMENDMENT NO. 2
to the
REGISTRATION RIGHTS AGREEMENT
dated as of May 16, 2001 between
NEXT LEVEL COMMUNICATIONS, INC
and
MOTOROLA, INC
This AMENDMENT NO. 2, dated as of December 11, 2001, is entered into in
respect of the Registration Rights Agreement dated as of May 16, 2001, as
amended by Amendment No. 1 dated as of October 24, 2001 (the "REGISTRATION
RIGHTS AGREEMENT") between NEXT LEVEL COMMUNICATIONS, INC., a Delaware
corporation ("NEXT LEVEL") and MOTOROLA, INC., a Delaware corporation
("MOTOROLA").
WHEREAS, in connection with Amendment No. 4 dated concurrently herewith to
the Credit Agreement dated as of May 16, 2001, by and between Next Level and
Motorola (the "Credit Agreement"), Next Level has granted to Motorola warrants
to purchase Two Million Five Hundred Thousand (2,500,000) shares of Common
Stock, par value $0.01 per share, of Next Level (as further defined herein, the
"Common Stock") subject to the terms and conditions set forth therein.
In connection therewith, Next Level and Motorola hereby agree to amend the
Registration Rights Agreement as follows:
SECTION 1
DEFINITIONS
Except as otherwise provided herein, terms defined in the Registration
Rights Agreement are used herein as defined there.
SECTION 2
AMENDMENTS
2.1 The second paragraph of the recitals to the Registration Rights
Agreement is hereby deleted in its entirety and replaced with the following:
WHEREAS, in connection with the Credit Agreement dated as of May 16,
2001, by and between Next Level and Motorola (the "Credit Agreement"),
Next Level has granted to Motorola warrants to purchase Seven Million
Five Hundred Thousand (7,500,000) shares of Common Stock, par value
$0.01 per share, of Next Level (as further defined herein, the "Common
Stock") subject to the terms and conditions set forth therein; and
WHEREAS, in connection with Motorola's guarantee (the "Motorola
Guarantee") of Next Level's obligation to the Northwestern Mutual Life
Insurance Company, which obligation was incurred by Next Level in
connection with a Twenty Million Dollar ($20,000,000) real estate
financing, Next Level has granted to Motorola warrants to purchase an
additional Four Hundred Thousand (400,000) shares of the Common Stock,
par value $0.01 per share, of Next Level, subject to the terms and
conditions set forth therein; and
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WHEREAS, in connection with Amendment No. 4 dated as of December 11,
2001 to the Credit Agreement dated as of May 16, 2001, by and between
Next Level and Motorola (as amended from time to time, the "Credit
Agreement"), Next Level has granted to Motorola warrants to purchase
Two Million Five Hundred Thousand (2,500,000) shares of Common Stock,
par value $0.01 per share, of Next Level, subject to the terms and
conditions set forth therein (such warrants, together with the
warrants previously issued pursuant to the Credit Agreement, are
referred to collectively, as the "Warrants," as such term is further
defined below);
2.2 The definition of "COMMON STOCK" in Section 1.1 of the Registration
Rights Agreement is hereby amended and restated in its entirety to read as
follows:
""COMMON STOCK" means the Common Stock of Next Level or any other
class of Next Level stock for which the Convertible Promissory Note or
the Warrants become exercisable or convertible, but excluding, in the
case of securities issued at the time of the next round of financing
as described in the Convertible Promissory Note, any securities other
than Common Stock of Next Level."
2.3 There is hereby added to Section 1.1 of the Registration Rights
Agreement the following definition in its correct alphabetical order:
""CONVERTIBLE PROMISSORY NOTE" means the Promissory Note dated as of
December 11, 2001, representing loans of up to $20,000,000 and
containing provisions allowing the conversion of the debt represented
thereby into Common Stock or other Next Level securities on the terms
contained therein."
2.4 The definition of "HOLDER" in Section 1.1 of the Registration Rights
Agreement is hereby amended and restated in its entirety to read as follows:
""HOLDER" means the holder of any Registrable Security or of a Warrant
or of the Convertible Promissory Note."
2.5 The first sentence of the definition of "Registrable Securities" in
Section 1.1 of the Registration Rights Agreement is hereby amended and restated
in its entirety to read as follows: "REGISTRABLE SECURITIES" shall mean,
collectively, any shares or other securities issued or issuable upon exercise of
the Warrants, conversion of the Convertible Promissory Note, or in exchange for
or in respect of any such securities, but excluding, in the case of securities
issued at the time of the next round of financing as described in the
Convertible Promissory Note, any securities other than Common Stock of Next
Level."
2.6 Section 2.1(a)(ii) of the Registration Rights Agreement is hereby
amended and restated in its entirety to read as follows: "the Holders may
collectively exercise their rights under this Section 2.1 on not more than five
(5) occasions."
SECTION 3
MISCELLANEOUS
Except as expressly herein provided, the Registration Rights Agreement
shall remain unchanged and in full force and effect. This Amendment No. 2 may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same amendatory instrument and any of the parties hereto
may execute this Amendment No. 2 by
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signing any such counterpart. This Amendment No. 2 may be executed and delivered
by facsimile. This Amendment No. 2 shall be governed by, and construed in
accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be duly executed as of the day and year first above written.
NEXT LEVEL COMMUNICATIONS, INC.
By:____________________________________________
Name:_____________________________________
Title:____________________________________
MOTOROLA, INC.
By:____________________________________________
Name:_____________________________________
Title:____________________________________
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