AGREEMENT
THIS
AGREEMENT
is made
as of May 2, 2007 by and among Tcomt, Inc., a Delaware corporation
(“Tcomt”),
Xxxxxx Ventures, Inc., a Delaware corporation (the “Shareholder”),
and
Laurus Master Fund, Ltd. (“Laurus”).
WHEREAS,
Tcomt
has issued a Common Stock Purchase Warrant (as amended, restated, modified
or
supplemented from time to time, the “Warrant”)
to
Laurus to purchase up to twenty five percent (25%) of the common stock of Tcomt
(subject to increase and adjustment as set forth therein).
NOW
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1.
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Shareholders
Agreement.
Forthwith following the exercise of the Warrant in whole or in part
pursuant to Section 1.1 of the Warrant, each of Tcomt, the Shareholder
and
Laurus agree to negotiate in good faith the terms of a shareholders
agreement mutually agreeable to each of them, which such shareholder
agreement shall include, without limitation, (a) such matters commonly
provided for in a shareholders agreement, such as governance and
transfer
restrictions and (b) Laurus’ required consent to any of the Designated
Actions (as hereafter defined). For purposes hereof, the term “Designated
Actions” shall have the meaning set forth on Schedule
A
hereto.
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2.
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3.
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4.
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Counterparts.
This Agreement may be executed in one or more counterparts, each
of which
shall be deemed an original and all of which when taken together
shall
constitute one and the same agreement. Any signature delivered by
a party
by facsimile transmission or by sending a scanned copy by electronic
mail
shall be deemed an original signature
hereto.
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGES ON FOLLOWING PAGES]
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and
year first written above.
TCOMT,
INC.
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By: | /s/ XXXXXXX XXXXXX | |
Name:
Xxxxxxx Xxxxxx
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Title:
Vice President
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XXXXXX
VENTURES, INC.
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By: | /s/ XXXXXXX XXXXXX | |
Name:
Xxxxxxx Xxxxxx
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Title:
CRO
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LAURUS
MASTER FUND, LTD.
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By: | /s/ XXXXX GRIN | |
Name:
Xxxxx Grin
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Title:
Fund Manager
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2
SCHEDULE
A
DESIGNATED
ACTIONS
Tcomt
and/or the Shareholder, acting on behalf of Tcomt, shall not implement or effect
(or otherwise resolve or agree to implement or effect) any of the following
actions without the prior written approval of Laurus (which approval shall
not
be unreasonably withheld):
(a)
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(i)
declare or pay any dividends or make any other distribution in respect
of
any securities of Tcomt or (ii) make any distribution of any nature
(including repayment of loans) to any
person;
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(b)
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sell
or dispose of any assets or property, other than in the ordinary
course of
business consistent with past
practice;
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(c)
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establish,
acquire or otherwise become an equity holder (including, for greater
certainty, a holder of securities convertible into equity) in any
corporate entity or any partnership, equity joint venture or similar
arrangements;
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(d)
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enter
into any transactions outside the ordinary course with officers,
directors
or employees or Shareholder of their families or other persons with
whom
they do not act at arm’s length;
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(e)
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enter
into (other than in the ordinary course to fund working capital needs)
or
materially modify any credit
facility;
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(f)
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create
any mortgage, lien, charge or other form of encumbrance with respect
to
any of Tcomt’s assets;
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(g)
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materially
alter the fundamental nature of its business or otherwise engage
in other
businesses or activities that are not incidental to the businesses
or
activities presently undertaken by Tcomt;
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(h)
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enter
into any agreement with any third party except within the ordinary
course
of its business;
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(i)
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issue
or sell any capital stock of, or any rights, warrants or securities
convertible into or exercisable or exchangeable for any capital stock
of,
Tcomt, including by way of initial public
offering;
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(j)
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wind
up, dissolve or liquidate;
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(k)
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continue
under the laws of a jurisdiction other than the jurisdiction under
which
it was formed;
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(l)
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change
its fiscal year;
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3
(m)
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amend
its articles or by-laws;
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(n)
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merge
with or into any other company;
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(o)
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take
any action which would make it impossible to carry on the ordinary
business of Tcomt;
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(p)
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take
any action which would place Tcomt into bankruptcy;
or
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(q)
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appoint
or replace any outside accountants and/or
auditors.
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4