MTM TECHNOLOGIES, INC. AMENDMENT NO. 5 TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
EXHIBIT
10.3
AMENDMENT
NO. 5
TO
AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT
This
Amendment No. 5 (this "Amendment No.5") to the Amended and Restated
Registration Rights Agreement dated December 10, 2004, as amended by Amendment
No. 1 on November 23, 2005, Amendment No. 2 on March 29, 2007, Amendment No.
3
on April 9, 2007, and Amendment No, 4 on May 24, 2007 (the “Registration
Rights Agreement”), among (a) MTM Technologies, Inc., a New York corporation
(the "Company"), (b) Xxxxxx Xxxxxxx, a natural person, (c) Xxxxxx Xxxxxx, a
natural person (Messrs. Xxxxxxx and Xxxxxx collectively, the
“Executives”), (d) Pequot Private Equity Fund III, L.P. and Pequot
Offshore Private Equity Partners III, L.P., (collectively, the “Pequot
Stockholders”), (e) Constellation Venture Capital II, L.P., Constellation
Venture Capital Offshore II, L.P., The BSC Employee Fund VI, L.P. and CVC II
Partners, LLC (collectively, the “Constellation Stockholders” and
together with the Pequot Stockholders, the “Investor Stockholders,”) is
entered into as of July 25, 2007. Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to such terms in the
Registration Rights Agreement.
Background
WHEREAS,
the Company has entered into a Securities Purchase Agreement (the “Series A-8
Purchase Agreement”) among the Company, and the Pequot Stockholders dated as
of even date whereby provisions were made for the purchase, sale and issuance
of
up to 743,415 shares of Series A-8 Preferred Stock (the “Series A-8 Preferred
Stock”) and detachable warrants to purchase up to 892,098 shares (as such
amount may be adjusted in accordance with the terms thereof) of the Company’s
common stock ( the “Series A-8 Warrants”);
WHEREAS,
simultaneously with, and as a condition to, entering into the Purchase
Agreement, the Investor Stockholders are entering into this Amendment No. 5
in
order to amend the Registration Rights Agreement and to provide certain
registration and other rights with respect to the Series A-8 Preferred Stock
and
Series A-8 Warrants to be issued in connection with the Purchase Agreement;
and
WHEREAS,
pursuant to Section 13(b) of
the Registration Rights Agreement, this Amendment No. 5 requires the consent
of
the Company, a Pequot Majority in Interest and a Constellation Majority in
Interest.
NOW,
THEREFORE, in consideration of the mutual premises and agreements contained
herein, and intending to be legally bound hereby, the parties hereto agree
as
follows:
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1.
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Amendments.
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(a) The
eighth recital to the Registration Rights Agreement shall be amended in its
entirety and replaced with the following:
WHEREAS,
pursuant to a Purchase Agreement, dated as of even date herewith (as the same
may be amended or supplemented, the “Series A-8 Purchase Agreement”),
among the Company and the Pequot Stockholders, the Company (i) issued and sold,
and the Pequot Stockholders purchased 743,415 shares of Series A-8 convertible
preferred stock, par value $0.001 per share, and (ii) issued and sold, and
the
Pequot Stockholders purchased detachable warrants to purchase up to 892,098
shares (as such amount may be adjusted in accordance with the terms thereof)
of
the Company’s common stock (collectively, the “Series A-8
Warrants”);
(b) A
new tenth recital to the Registration Rights Agreement shall be added after
the
ninth recital as follows:
WHEREAS,
simultaneously with, and as a condition to, the closing of the transactions
contemplated by the A-8 Purchase Agreement, the Company and the Investor
Stockholders are entering into this Amendment No. 5, in order to amend the
Registration Rights Agreement and to provide certain registration and other
rights with respect to the Common Stock held by or issuable to the Pequot
Stockholders pursuant to the A-8 Purchase Agreement;
(c) The
following definitions in Section 1 of the Registration Rights Agreement shall
be
amended in their entirety and replaced with the following:
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(i)
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“Investor
Stockholders” As defined in the initial paragraph
hereof.
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(ii)
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“Pequot
Majority in Interest.” The Pequot Stockholders holding at least a majority
of the shares of Common Stock issued or issuable, directly or indirectly,
upon conversion or exercise of the Shares and Warrants purchased
by such
Pequot Stockholders in accordance with the Initial Series A Purchase
Agreement, the Purchase Agreement, the Series A-6 Purchase Agreement,
the
Series A-7 Purchase Agreement and the Series A-8 Purchase
Agreement.
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(iii)
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“Series
A Preferred Stock.” The Series A-1 Preferred Stock, Series A-2 Preferred
Stock, Series A-3 Preferred Stock, Series A-4 Preferred Stock, Series
A-5
Preferred Stock, Series A-6 Preferred Stock, Series A-7 Preferred
Stock,
and Series A-8 Preferred Stock
collectively.
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2
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(iv)
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“Shares.”
The shares of Series A Preferred Stock issued to the Investor Stockholders
in accordance with the Initial Series A Purchase Agreement, the Purchase
Agreement, the Series A-6 Purchase Agreement, the Series A-7 Purchase
Agreement and the Series A-8 Purchase
Agreement.
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(v)
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“Warrants.”
The Series X-0 Xxxxxxxx, Xxxxxx X-0 Xxxxxxxx, Series A-3 Warrants,
Series
A-4 Warrants, the Series A-5 Warrants, the Series A-6 Warrants, the
Series
A-7 Warrants and the Series A-8 Warrants issued to the Investor
Stockholders.
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(d) The
Following definition shall be added to Section 1 of the Registration Rights
Agreement:
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(i)
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“Series
A-8 Preferred Stock” As defined in the eighth recital
hereof.
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This
definition shall be inserted after the definition of “Series A-7
Warrants”
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(ii)
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“Series
A-8 Warrants” as defined in the eighth recital
hereof.
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This
definition shall be inserted after the definition of “Series A-8 Preferred
Stock.”
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2.
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Entire
Agreement. This Amendment No.5 and the Registration Rights
Agreement are to be read together as one instrument. The
Registration Rights Agreement shall remain in full force and effect,
except as modified hereby.
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3.
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Governing
Law. This Amendment No.5 is made pursuant to, and shall be
governed by and construed in accordance with, the laws of the State
of New
York, other than provisions thereof relating to conflicts of
law.
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4.
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Counterparts. This
Amendment No.5 may be executed in any number of counterparts, each
of
which shall be considered an original and which shall together constitute
one instrument.
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5.
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Headings. The
titles and subtitles used in this Amendment No.4 are used for convenience
only and are not to be considered in construing or interpreting this
Amendment No.5.
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[Remainder
of this page intentionally blank]
3
IN
WITNESS WHEREOF, the parties have executed this Amendment No. 5 as of the date
first above written.
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COMPANY:
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By:
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/s/
X.X. Xxxxxxxx III
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Name:
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X.X.
Xxxxxxxx III
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Title:
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SVP
and Chief Financial Officer
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PEQUOT
STOCKHOLDERS:
PEQUOT
PRIVATE EQUITY FUND III, L.P.
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By:
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Pequot
Capital Management, Inc.,
as
Investment Manager
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By:
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/s/
Xxxxx Xxxxx
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Name:
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Xxxxx
Xxxxx
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Title:
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General
Counsel
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PEQUOT
OFFSHORE PRIVATE EQUITY PARTNERS III, L.P.
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By:
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Pequot
Capital Management, Inc.,
as
Investment Manager
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By:
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/s/
Xxxxx Xxxxx
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Name:
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Xxxxx
Xxxxx
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Title:
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General
Counsel
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Signature
Page to Amendment No. 5 to Registration Rights Agreement
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CONSTELLATION
STOCKHOLDERS:
CONSTELLATION
VENTURE CAPITAL
II,
L.P.
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By:
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Constellation
Ventures Management
II,
LLC, Its General Partner
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By:
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/s/ | ||
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Name:
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Title:
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CONSTELLATION
VENTURE CAPITAL OFFSHORE II, L.P.
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By:
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Constellation
Ventures Management
II,
LLC, Its General Partner
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By:
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/s/ | ||
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Name:
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Title:
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THE
BSC EMPLOYEE FUND VI, L.P.
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By:
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Constellation
Ventures Management
II,
LLC, Its General Partner
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By:
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/s/ | ||
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Name:
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Title:
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CVC
II PARTNERS, LLC
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By:
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The
Bear Xxxxxxx Companies Inc.,
Its
Managing Member
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By:
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/s/ | ||
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Name:
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Title:
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Signature
Page to Amendment No. 5 to Registration Rights Agreement
