AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
AMENDMENT
NO. 1
TO
This
Amendment to Registration Rights Agreement (this “Amendment”) is made
and entered into effective as of July 16, 2010, by and among UniTek Global
Services, Inc. (f/k/a Berliner Communications, Inc.), a Delaware corporation
(the “Corporation”), and
the stockholders of the Corporation signatory hereto (the “Majority
Stockholders”).
WHEREAS,
the Corporation and the Majority Stockholders are parties to that certain
Registration Rights Agreement (the “Registration Rights Agreement”),
dated as of January 27, 2010, by and among the Corporation and the stockholders,
warrantholders and optionholders party thereto;
WHEREAS,
Section 9(a) of the Registration Rights Agreement provides that the Registration
Rights Agreement may be amended pursuant to a written instrument making specific
reference to the Registration Rights Agreement that identifies itself as an
amendment to the Registration Rights Agreement and that is executed by the
Corporation and holders of a majority of the Registrable Securities (as such
term is defined in the Registration Rights Agreement);
WHEREAS,
the Majority Stockholders hold a majority of the Registrable
Securities;
WHEREAS,
Unitek Acquisition, Inc. and Unitek Midco, Inc., both wholly-owned subsidiaries
of the Corporation, Greenstar Capital Finance LLC (“Greenstar”) and
certain lenders and guarantors have entered into that certain Third Incremental
Term B Facility Amendment and Amendment No. 6 to the First Lien Credit Agreement
(the “Credit Amendment”),
dated as of the date hereof, pursuant to which Greenstar and certain other
lenders agreed to make available to Unitek Acquisition, Inc. a $20,000,000 Third
Incremental Term B Facility (as such term is defined in the Credit
Amendment);
WHEREAS,
in connection with the Credit Amendment, the Corporation is to deliver Common
Stock Purchase Warrants (the “Warrants”) for the
purchase of up to 3,000,000 shares of the Corporation’s common stock, par value
$0.00002 per share (“Common Stock”),
at an exercise price of $0.01 per share; and
WHEREAS,
the Corporation and the Majority Stockholders desire to amend the Registration
Rights Agreement to include in the definition of “Registrable Securities” the
shares of Common Stock issuable upon exercise of the Warrants.
NOW,
THEREFORE, in consideration of the promises hereinafter set forth and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. “Aladdin Entities”
Definition. The following defined term is hereby added in
Section 1 of the Registration Rights Agreement immediately after the “Agreement”
definition:
“Aladdin
Entities” means Aladdin Flexible Investment Fund SPC, Series 2007-1, Aladdin
Flexible Investment Fund SPC, Series 2008-1 and Aladdin Flexible Investment Fund
SPC, Series 2008-2 and any of their Permitted Transferees (as such term is
defined in the Aladdin Warrants), provided that such Permitted Transferee has
executed a Joinder agreeing to be bound by the terms of this
Agreement.”
2. “Aladdin Warrants”
Definition. The following defined term is hereby added in
Section 1 of the Registration Rights Agreement immediately before the
“Capital Stock” definition:
“Aladdin
Warrants” means that certain Common Stock Purchase Warrant No. G-2, that certain
Common Stock Purchase Warrant No. G-3 and that certain Common Stock Purchase
Warrant No. G-4, each dated as of July 16, 2010, each issued to and held by the
applicable Aladdin Entity.”
3. “Greenstar”
Definition. The following defined term is hereby added in
Section 1 of the Registration Rights Agreement immediately after the “Free
Writing Prospectus” definition:
“Greenstar”
means Greenstar Capital Finance LLC and any of its Permitted Transferees (as
such term is defined in the Greenstar Warrant), provided that such Permitted
Transferee has executed a Joinder agreeing to be bound by the terms of this
Agreement.”
4. “Greenstar Warrant”
Definition. The following defined term is hereby added in
Section 1 of the Registration Rights Agreement immediately before the
“Holdback Extension” definition:
“Greenstar
Warrant” means that certain Common Stock Purchase Warrant No. G-1, dated as of
July 16, 2010, issued to and held by Greenstar.”
5. “Registrable Securities”
Definition. The defined term “Registrable Securities” in
Section 1 of the Registration Rights Agreement shall be deleted and replaced in
its entirety with the following:
“Registrable
Securities” means any Common Stock (including, without limitation, (x) any
Common Stock issued upon the conversion of the Series A Preferred or the Series
B Preferred issued pursuant to the Merger Agreement, (y) any Common Stock issued
to and held by Greenstar upon the exercise of the Greenstar Warrant and (z) any
Common Stock issued to and held by an Aladdin Entity upon the exercise of the
applicable Aladdin Warrant). As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when they
have been (a) sold or distributed pursuant to a Public Offering, (b) sold in
compliance with Rule 144 or (c) repurchased by the Company or a Subsidiary
of the Company. For purposes of this Agreement, a Person shall be
deemed to be a holder of Registrable Securities, and the Registrable Securities
shall be deemed to be in existence, whenever such Person has the right to
acquire, directly or indirectly, such Registrable Securities (upon conversion or
exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected, and such Person
shall be entitled to exercise the rights of a holder of Registrable Securities
hereunder; provided that a holder of Registrable Securities may only request
that Registrable Securities in the form of Common Stock be registered pursuant
to and in accordance with this Agreement.
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6. Complete
Agreement. This Amendment and the Registration Rights
Agreement contain the complete agreement between the parties hereto with respect
to the subject matter hereof and supersede all prior agreements and
understandings, whether written or oral, between the parties hereto that may
have related to the subject matter hereof in any way.
7. Governing
Law. THE PROVISIONS OF THIS AMENDMENT AND ALL OF THE DOCUMENTS
DELIVERED PURSUANT HERETO, THEIR EXECUTION, PERFORMANCE OR NONPERFORMANCE,
INTERPRETATION, TERMINATION, CONSTRUCTION AND ALL MATTERS BASED UPON, ARISING
OUT OF OR RELATED TO THIS AMENDMENT OR THE NEGOTIATION, EXECUTION OR PERFORMANCE
OF THIS AMENDMENT (WHETHER IN EQUITY, LAW OR STATUTE) SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS, BOTH PROCEDURAL AND SUBSTANTIVE, OF THE
STATE OF DELAWARE WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS THAT IF
APPLIED MIGHT REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
8. No Other
Modification. Except as set forth in this Amendment, the terms
and conditions of the Registration Rights Agreement shall remain in full force
and effect.
9. Counterparts. This
Amendment may be executed in two or more counterparts (any of which may be
delivered by facsimile or other electronic transmission followed promptly by an
executed original), each of which will be deemed an original, but all of which
together will constitute one and the same instrument. Any signature
page delivered by facsimile or electronic image transmission shall be binding to
the same extent as an original signature page.
* * * * *
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IN WITNESS WHEREOF, the
parties have executed this Amendment as of the date first written
above.
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By:
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Name:
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Xxxxxx
X. Xxxxxx
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Title:
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Chief
Financial
Officer
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SPF
SBS LP
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By:
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Sector
Performance LLC,
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its
general partner
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By:
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
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Vice
President & Chief Financial Officer
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HM
UNITEK COINVEST, LP
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By:
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Sector
Performance LLC,
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its
general partner
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By:
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
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Vice
President & Chief Financial Officer
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SECTOR
PERFORMANCE FUND, LP
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By:
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Sector
Performance GP, LP,
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its
general partner
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By:
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Sector
Performance LLC,
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its
general partner
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By:
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
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Vice
President &
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Chief
Financial
Officer
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Signature
Page to
Amendment
No. 1 to
Registration
Rights Agreement
