EXHIBIT 10.2
MTM TECHNOLOGIES, INC.
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the "Agreement")
dated August 1, 2005 to be effective as of July 16, 2005 is by and 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. (each a "Pequot
Stockholder" and, collectively, the "Pequot Stockholders"), (d) 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 (each a "Constellation
Stockholder" and collectively, the "Constellation Stockholders").
Preliminary Statement
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WHEREAS, pursuant to that certain Purchase Agreement, dated as of January
29, 2004 (the "Initial Series A Purchase Agreement"), between the Company and
the Pequot Stockholders the Pequot Stockholders purchased an aggregate of
3,255,814 shares of the Company's Series A-1 convertible preferred stock, par
value $0.001 per share (the "Series A-1 Preferred Stock") and detachable
warrants (the "Series A-1 Warrants") to purchase up to 500,000 shares of the
Company's common stock, par value $0.001 per share (the "Common Stock") and
purchased an aggregate of 2,000,000 shares of the Company's Series A-2
convertible preferred stock, par value $0.001 per share (the "Series A-2
Preferred Stock") and detachable warrants (the "Series A-2 Warrants") to
purchase up to 400,000 shares of Common Stock and, the Pequot Stockholders had
the option to request that the Company issue and sell to the Pequot Stockholders
an aggregate of 3,846,154 shares of the Company's Series A-3 convertible
preferred stock, par value $0.001 per share (the "Series A-3 Preferred Stock")
and detachable warrants (the "Series A-3 Warrants") to purchase up to 769,232
shares of Common Stock;
WHEREAS, in accordance with Section 11.2 of the Initial Series A Purchase
Agreement, the Pequot Stockholders had the right to assign their right to
purchase the Series A-3 Preferred Stock and Series A-3 Warrants and certain of
their right, title and interest under the Initial Series A Purchase Agreement
with respect to the Series A-3 Preferred Stock and the Series A-3 Warrants to
any third party reasonably acceptable to the independent directors of the
Company without the prior written consent of the Company;
WHEREAS, the Pequot Stockholders provided the requisite notice to the
Company indicating their desire to purchase Series A-3 Preferred Stock and
Series A-3 Warrants for an aggregate purchase price of $6,250,000 and, pursuant
to that certain Series A-3 Convertible Preferred Stock Assignment Agreement,
dated as of December 10, 2004, between the Pequot Stockholders and the
Constellation Stockholders, the Pequot Stockholders assigned to the
Constellation Stockholders all of their rights and obligations under the Initial
Series A Purchase Agreement to purchase from the Company 1,923,077 shares of the
Series A-3 Preferred Stock at a purchase price of $3.25 per share any and
Warrants for the purchase of 384,616 shares of Common Stock for an aggregate
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purchase price of $6,250,000 together with all rights and obligations of a
"Purchasers" under the Initial Series A Purchase Agreement with respect to the
such Series A-3 Preferred Stock and the Series A-3 Warrants; and
WHEREAS, pursuant to a Purchase Agreement, dated December 7, 2004 (as the
same may be amended or supplemented, the "Purchase Agreement"), among the
Company and the Investor Stockholders, providing for the issuance and sale by
the Company to the Investor Stockholders of (i) convertible secured subordinated
promissory notes in the aggregate principal amount of up to $10,000,000 (the
"Series A-4 First Tranche Notes") which, subject to Shareholder Approval, are
convertible in accordance with their terms into shares of Series A-4 convertible
preferred stock, par value $0.001 per share, of the Company (the "Series A-4
Preferred Stock") and (ii) detachable warrants, subject to Shareholder Approval,
to purchase up to 615,385 shares of Common Stock (each, a "Series A-4 Initial
Warrant" and, collectively, the "Series A-4 Initial Warrants"), and the grant of
an option by the Company to the Investor Stockholders of (x) convertible secured
subordinated promissory notes in the aggregate principal amount of up to
$15,000,000 (the "Series A-4 Second Tranche Notes" and together with the Series
A-4 First Tranche Notes, the "Series A-4 Notes") which are convertible in
accordance with their terms into shares of Series A-4 Preferred Stock, (y)
detachable warrants to purchase up to 923,077 shares of Common Stock (each, a
"Series A-4 Additional Warrant" and, collectively, the "Series A-4 Additional
Warrants" and together with the Series A-4 Initial Warrants, the "Series A-4
Warrants") and (iii) convertible secured subordinated promissory notes in the
aggregate principal amount of up to $15,000,000 (the "Series A-5 Notes" and
together with the Series A-4 Notes, the "Notes") maturing on the herein defined
Maturity Date which are convertible in accordance with their terms into shares
of Series A-5 Convertible Preferred Stock, $0.001 par value per share (the
"Series A-5 Preferred Stock"), pursuant to the Purchase Agreement;
WHEREAS, simultaneously with, and as a condition to, the closing of the
transactions contemplated by the Purchase Agreement, the Company, the Investor
Stockholders and the Executives are entering into this Agreement in order to
amend and restate that certain Registration Rights Agreement, dated as of May
21, 2004, between the Company, the Pequot Stockholders and the Executives (the
"Initial Registration Rights Agreement") and to provide certain registration and
other rights with respect to the Common Stock held by or issuable to the
Investor Stockholders and to provide the Executives with certain registration
rights, subject to the terms and provisions of this Agreement, with respect to
the Common Stock held by the Executives and to set forth certain restrictions
and obligations of the Company and the Stockholders;
WHEREAS, in connection with certain amendments to the employment and other
arrangements of one of the Executives with the Company, such Executive and the
Company desire to amend certain provisions of this Agreement;
WHEREAS, except for those registration rights set forth in (i) the Initial
Registration Rights Agreement, (ii) that certain Registration Rights Agreement,
dated December 10, 2004, between the Company and the Shareholders listed therein
(the "Vector Registration Rights Agreement"), (iii) that certain Piggyback
Registration Rights Agreement, dated as of March 11, 2005, among the Company and
the stockholders listed on Schedule I thereto (the "Info Systems Piggyback
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Agreement"), and (iv) this Agreement, no other registration rights, have been
granted by the Company to its shareholders and are in existence as of the date
hereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement and the Purchase Agreement, and intending to be
legally bound, the parties hereto agree that the Initial Registration Rights
Agreement is hereby amended and restated in its entirety as follows:
Terms and Conditions
--------------------
Section 1. Definitions. As used in this Agreement, the following terms have
the meanings indicated below or in the referenced sections of this Agreement:
"Adjustment Provisions." As defined in Section 3(a) hereof.
"Agreement." As defined in the initial paragraph hereof.
"Common Stock." As defined in the Preliminary Statement hereof.
"Constellation Majority in Interest." The Constellation 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 Constellation Stockholders in accordance with the Initial
Series A Purchase Agreement and the Purchase Agreement.
"Constellation Stockholders." (i) Constellation Venture Capital II, L.P.
(ii) Constellation Venture Capital Offshore II, L.P. (iii) The BSC Employee Fund
VI, L.P. (iv) CVC II Partners, LLC and (v) any other Person to whom the right to
acquire any Notes or Series A Preferred Stock have been assigned by
Constellation Venture Capital II, L.P., Constellation Venture Capital Offshore
II, L.P., The BSC Employee Fund VI, L.P. or CVC II Partners, LLC for so long as
such Persons hold Registrable Securities transferred by Constellation Venture
Capital II, L.P., Constellation Venture Capital Offshore II, L.P., The BSC
Employee Fund VI, L.P. or CVC II Partners, LLC and any other Person to whom
Registrable Securities transferred by Constellation Venture Capital II, L.P.,
Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund VI, L.P.
or CVC II Partners, LLC are transferred so long as any such Person holds
Registrable Securities transferred by Constellation Venture Capital II, L.P.,
Constellation Venture Capital Offshore II, L.P., The BSC Employee Fund VI, L.P.
or CVC II Partners, LLC; provided, however, that any transferee shall be a
Constellation Stockholder only in connection with the Registrable Securities
transferred by Constellation Venture Capital II, L.P., Constellation Venture
Capital Offshore II, L.P., The BSC Employee Fund VI, L.P. or CVC II Partners,
LLC held by such Person.
"Executives." As defined in the initial paragraph hereof.
"Exchange Act." The Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder.
"Info Systems Piggyback Agreement." As defined in the Preliminary Statement
hereof.
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"Initial Registration Rights Agreement." As defined in the Preliminary
Statement hereof.
"Initial Series A Purchase Agreement." As defined in the Preliminary
Statement hereof.
"Initial Series A-1 Closing Date" May 21, 2004.
"Investor Stockholders." The Pequot Stockholders and the Constellation
Stockholders, collectively.
"NASD." The National Association of Securities Dealers, Inc.
"Nasdaq." The Nasdaq Stock Market.
"Notes." As defined in the Preliminary Statement hereof.
"Pavony." Xxxxxx Xxxxxx.
"Person." An individual, a partnership, a corporation, a limited liability
company or partnership, an association, a joint stock company, a trust, a
business trust, a joint venture, an unincorporated organization or a government
entity or any department, agency, or political subdivision thereof.
"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 and the Purchase Agreement.
"Pequot Stockholders." (i) Pequot Private Equity Fund III, L.P., (ii)
Pequot Offshore Private Equity Partners III, L.P. and (iii) any other Person to
whom the right to acquire any Notes or Series A Preferred Stock have been
assigned by either Pequot Private Equity Fund III, L.P. or Pequot Offshore
Private Equity Partners III, L.P. for so long as such Persons hold Registrable
Securities transferred by either Pequot Private Equity Fund III, L.P. or Pequot
Offshore Private Equity Partners III, L.P. and any other Person to whom
Registrable Securities transferred by either Pequot Private Equity Fund III,
L.P. or Pequot Offshore Private Equity Partners III, L.P. are transferred so
long as any such Person holds Registrable Securities transferred by either
Pequot Private Equity Fund III, L.P. or Pequot Offshore Private Equity Partners
III, L.P.; provided, however, that any transferee shall be a Pequot Stockholder
only in connection with the Registrable Securities transferred by either Pequot
Private Equity Fund III, L.P. or Pequot Offshore Private Equity Partners III,
L.P. held by such Person.
"Piggyback Registration." As defined in Section 4(a) hereof.
"Purchase Agreement." As defined in the Preliminary Statement hereof.
"Notes." As defined in the Preliminary Statement hereof.
"Registrable Securities." Any Common Stock issued or issuable upon
conversion or exercise of the Shares and Warrants or deriving therefrom, all
shares of Common Stock owned by the Executives on the Initial Series A-1 Closing
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Date, and all other shares of Common Stock of the Company or any successor owned
from time to time by the Investor Stockholders; provided, that a Registrable
Security ceases to be a Registrable Security when (i) it is registered under the
Securities Act and disposed of in accordance with the registration statement
covering it or (ii) it is sold or transferred in accordance with the
requirements of Rule 144 (or similar provisions then in effect) promulgated by
the SEC under the Securities Act ("Rule 144").
"Registration Expenses." As defined in Section 7(a) hereof.
"Registration Statement." Registration Statement shall mean the
registration statement contemplated by Section 3 and any additional registration
statements contemplated by Section 4, including (in each case) the prospectus,
amendments and supplements to such registration statement or prospectus, all
exhibits attached thereto, and all material incorporated by reference or deemed
to be incorporated by reference in such registration statement.
"SEC." The United States Securities and Exchange Commission.
"Securities Act." The Securities Act of 1933, as amended, and the rules and
regulations thereunder.
"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 and
Series A-5 Preferred Stock, collectively.
"Series A-1 Preferred Stock." As defined in the Preliminary Statement
hereof.
"Series A-1 Warrants." As defined in the Preliminary Statement hereof.
"Series A-2 Preferred Stock." As defined in the Preliminary Statement
hereof.
"Series A-2 Warrants." As defined in the Preliminary Statement hereof.
"Series A-3 Preferred Stock." As defined in the Preliminary Statement
hereof.
"Series A-3 Warrants." As defined in the Preliminary Statement hereof.
"Series A-4 Preferred Stock." As defined in the Preliminary Statement
hereof.
"Series A-4 Warrants." As defined in the Preliminary Statement hereof.
"Series A-5 Preferred Stock." As defined in the Preliminary Statement
hereof.
"Shareholder Approval". The approval by the shareholders of the Company of
the Certificate of Incorporation, the authorization and issuance of (or the
conversion of the Notes into) the Series A-4 Preferred Stock and Series A-5
Preferred Stock, the exercise of the Series A-4 Warrants and the issuance of any
Common Stock issuable upon conversion or exercise of the foregoing.
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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 and the
Purchase Agreement.
"Warrants." The Series A-1 Warrants, Series A-2 Warrants, Series A-3
Warrants and Series A-4 Warrants issued to the Investor Stockholders.
"Vector Registration Rights Agreement." As defined in the Preliminary
Statement hereof.
Section 2. Securities Subject to this Agreement.
(a) Holders of Registrable Securities. A Person is deemed to be a holder of
Registrable Securities whenever that Person owns, directly or beneficially, or
has the right to acquire, Registrable Securities, disregarding any legal
restrictions upon the exercise of that right.
(b) Majority of Registrable Securities. As used in this Agreement, the term
"majority of the Registrable Securities" means more than 50% of the Registrable
Securities being registered unless the context indicates that it is more than
50% of the Registrable Securities then issued and outstanding.
Section 3. Initial Registration. (a) Subject to receipt of necessary
information from the Investor Stockholders, the Company will, as soon as
practical but in no event later than 60 days following (a) the date of any
issuance of Series A Preferred Stock and (b) the date of notice to the Company
of any acquisition of Common Stock then having a fair market value of at least
$150,000 by the Investor Stockholders, prepare and file with the SEC a
Registration Statement on Form S-1 or, if applicable, Form S-3, or any
equivalent form for registration by small business issuers in accordance with
the Securities Act, to permit a public offering and resale of the Registrable
Securities then issued or underlying any then issued Shares or Warrants under
the Securities Act on a continuous basis under Rule 415. The Company
acknowledges that the plan of distribution contemplated by such Registration
Statement shall include offers and sales through underwriters or agents, offers
and sales directly to investors, block trades and such other methods of offer
and sale as the Investor Stockholders shall request. The Company will use its
reasonable best efforts to cause the Registration Statement to be declared
effective by the SEC within 150 days following the applicable date referred to
in Section 3(a)(a) or (b) above. The Company will cause such Registration
Statement to remain effective until such time as all of the shares of Common
Stock designated thereunder are sold or the holders thereof are entitled to rely
on Rule 144(k) for sales of Registrable Securities without registration under
the Securities Act and without compliance with the public information, sales
volume, manner of sale or notice requirements of Rule 144(c), (e), (f) or (h).
The Company will pay all Registration Expenses of each registration of
Registrable Securities pursuant to this Section 3. The number of shares of
Common Stock designated in the Registration Statement shall be equal to the sum
of the number of shares of Common Stock (x) issuable upon (A) the conversion of
the Shares then issued to the Investor Stockholders and (B) the exercise of the
Warrants held by the Investor Stockholders and (y) issued to the Executives as
of the time of the Initial Series A-1 Closing Date. The Company acknowledges
that at the time the Company files the Registration Statement pursuant to this
Section 3 the number of Registrable Securities issuable to the Investor
Stockholders will not be fixed due to the antidilution and other provisions
related to the Shares and Warrants ("Adjustment Provisions"). Accordingly, the
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Company agrees that it will register the number of shares of Common Stock
issuable on conversion of the Shares and on the exercise of the Warrants held by
the Investor Stockholders as of filing such Registration Statement. The Company
agrees that, thereafter, it will file, within a reasonable period of time after
each issuance of Shares or Warrants to the Investor Stockholders such amendments
and/or supplements to the Registration Statement, and such additional
Registration Statements as are necessary in order to ensure that at least 100%
of the number of shares of Common Stock issuable on conversion of such Shares
and on the exercise of such Warrants and any other Registrable Securities then
held by the Investor Stockholders are included in a Registration Statement.
(b) Executives' Registrable Securities. If any of the Executives desires,
from time to time, to include his Registrable Securities for resale in a
Registration Statement filed pursuant to Section 3(a), such Executives may
include, collectively, an amount of Registrable Securities equal to the greater
of (x) 50% of the Registrable Securities being registered by the Pequot
Stockholders in such resale or (y) a portion of such Executive's Registrable
Securities equal to the aggregate number of Registrable Securities owned by the
Executives multiplied by a fraction, the numerator of which is the aggregate
number of Registrable Securities owned by the Executives and the denominator of
which is the aggregate number of Registrable Securities. Registrable Securities
held by each Executive shall be included pro rata based on the number of
Registrable Securities that each Executive desires to include.
(c) Selection of Underwriters. If any registration pursuant to this Section
3 is an underwritten offering, the holders of at least 63% of the Registrable
Securities will select as the investment banker(s) and manager(s) that will
administer the offering a nationally recognized investment banker(s) and
manager(s) with demonstrable industry-specific expertise and experience and
reasonably acceptable to the Company.
(d) Liquidated Damages. If the Company fails to file or use reasonable best
efforts to cause a Registration Statement to be declared effective in accordance
with respective time periods set forth in Section 3, the Company shall pay to
each Investor Stockholder including Registrable Securities issued on conversion
of securities purchased pursuant to the Purchase Agreement in such Registration
Statement, as liquidated damages and not as a penalty, an amount equal to 0.25%
of the purchase price paid for such securities if such failure continues for 90
days and 0.50% of such purchase price if such failure continues for more than 90
days. Notwithstanding the foregoing, each time period set forth in Section 3
shall be extended by 90 days upon the occurrence of any event that would permit
the Company to suspend the effectiveness of a Registration Statement as provided
in Section 12, and such liquidated damages shall be payable only upon the
failure to file or to use such efforts to cause the effectiveness of such
Registration Statement following an additional period of 90 days after such
extension. Liquidated damages payable pursuant to this Section 3(d) may be paid
in cash or such securities valued at the price paid for such securities.
Section 4. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of
its securities in an underwritten offering under the Securities Act, whether for
its own account or for the account of another stockholder (except for the
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registration of securities to be offered pursuant to an employee benefit plan on
Form S-8, pursuant to a registration made on Form S-4 or any successor forms
then in effect) at any time other than pursuant to a registration in connection
with Section 3 above and the registration form to be used may be used for the
registration of the Registrable Securities (a "Piggyback Registration"), it will
so notify in writing all Investor Stockholders and Pavony no later than twenty
(20) days prior to the anticipated filing date. Subject to the provisions of
Section 4(c), the Company will include in the Piggyback Registration all
Registrable Securities owned by the Investor Stockholders and Pavony with
respect to which the Company has received written requests for inclusion within
ten (10) days after the issuance of the Company's notice. Each of such Investor
Stockholders' and Pavony's notice shall state the intended method of disposition
of the Registrable Securities by such Investor Stockholder or Pavony. Such
Registrable Securities may be made subject to an underwriters' over-allotment
option, if so requested by the managing underwriter. An Investor Stockholder or
Pavony may withdraw all or any part of the Registrable Securities from a
Piggyback Registration at any time before ten (10) business days prior to the
effective date of the Piggyback Registration. In any Piggyback Registration, the
Company, the Investor Stockholders, Pavony and any Person who hereafter becomes
entitled to register its securities in a registration initiated by the Company
must sell their securities on the same terms and conditions. A registration of
Registrable Securities pursuant to this Section 4 shall be in addition to the
registration pursuant to Section 3.
(b) Piggyback Expenses. The Company shall pay all Registration Expenses in
connection with a Piggyback Registration by the Investor Stockholders or Pavony.
(c) Underwriting; Priority on Piggyback Registrations. The right of any
Investor Stockholder or Pavony to be included in an underwritten registration
pursuant to this Section 4 shall be conditioned upon such Investor Stockholder's
or Pavony's participation in such underwriting and the inclusion of such
Investor Stockholder's or Pavony's Registrable Securities in the underwriting to
the extent provided herein. If the managing underwriter gives the Company its
written opinion that the total number or dollar amount of securities requested
to be included in the registration exceeds the number or dollar amount of
securities that can be sold, the Company will include the securities in the
registration in the following order of priority: (i) first, all securities the
Company proposes to sell; (ii) second, up to the full number or dollar amount of
Registrable Securities requested to be included in the registration by the
Investor Stockholders and Pavony (allocated pro rata among the Investor
Stockholders and Pavony, on the basis of the dollar amount or number of
Registrable Securities requested to be included, provided, that in the event
such pro rata allocation results in less than 175,000 shares of the Registrable
Securities requested to be included in such registration by Pavony being
included in the offering, Pavony shall be entitled to have 175,000 shares of
Registrable Securities (or such lesser amount as actually requested) included in
the offering and the remainder of Registrable Shares shall allocated pro rata
among the Investor Stockholders); and (iii) third, any other securities
(provided they are of the same class as the securities sold by the Company)
requested to be included, allocated among the holders of such securities in such
proportions as the Company and those holders may agree; provided, that no
Registrable Securities of the Pequot Stockholders, the Constellation
Stockholders or Pavony shall be subject to any cutback in the amount of
Registrable Securities requested to be included in the registration unless all
other holders of securities requesting to be included in such registration have
been excluded from such registration; provided, further, that no Registrable
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Securities of the Pequot Stockholders or the Constellation Stockholders shall be
subject to any cutback which would result in the Pequot Stockholders' or the
Constellation Stockholders owning less than 750,000 shares of Common Stock. In
the event that the managing underwriter advises the Company that an
underwriters' over-allotment option is necessary or advisable, the allocation
provided for in this Section 4(c) shall apply to the determination of which
securities are to be included in the registration of such shares.
Notwithstanding the forgoing, if the Investor Stockholders waive their rights
under this Section 4(c) in whole, Pavony shall be deemed to have waived his
rights without any further action by Pavony; provided, however, that the failure
of the Investor Shareholders to exercise their right to include Registrable
Securities in the registration shall not constitute a waiver and shall not
affect Pavony's rights. Notwithstanding the forgoing, if the Investor
Stockholders waive their rights under this Section 4(c) in part or agree to
changes in the priority for inclusion of Registrable Securities held by them in
a registration, Pavony shall be deemed to have waived his rights or agreed to
such changes ratably to the same extent as the Investor Shareholders without any
further action by Pavony; provided, however, that with respect to any remaining
rights under Section 4(c) after the waiver or agreement to change in priority,
the first 175,000 shares of the Registrable Securities requested to be included
in the registration by Pavony shall have priority in registration over any
Registrable Securities request to be included by the Investor Shareholders.
(d) Selection of Underwriters. In any Piggyback Registration, the Company
will select as the investment banker(s) and manager(s) that will administer the
offering a nationally recognized investment banker(s) and manager(s) with
demonstrable industry-specific expertise and experience. The Company and the
holders of Registrable Securities whose shares are being registered shall enter
into a customary underwriting agreement with such investment banker(s) and
manager(s); provided, that the liability of any holder of Registrable Securities
shall be limited to such holder's net proceeds received from the sale of its
Registrable Securities in such offering and such limitation shall not be amended
by any underwriting agreement or arrangement.
(e) Right to Terminate Registration. The Company shall have the right to
terminate or withdraw any registration initiated by it under this Section 4
prior to the effectiveness of such registration whether or not any Investor
Stockholder has elected to include securities in such registration. The
Registration Expenses of such withdrawn registration shall be borne by the
Company in accordance with Section 7 hereof.
Section 5. "Lock-Up" Agreements.
If requested by the managing underwriter, each holder of Registrable
Securities agrees not to sell, transfer, make any short sale of, grant any
option for the purchase of, or enter into any hedging or similar transaction
with the same economic effect as a sale with respect to (each, a "Disposition")
any Registrable Securities (or other securities) of the Company held by such
holder (other than those included in the registration) for a 30 day period (or
such longer period requested by the managing underwriter which shall in no event
exceed 90 days) after the effective date of any Registration Statement filed by
the Company pursuant to Section 4 unless the managing underwriter(s) agrees
otherwise; provided, however, that all executive officers and directors of the
Company, all holders of at least five percent (5%) of the Company's equity
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securities purchased from the Company (other than securities purchased from the
Company at any time after December 10, 2004 in a registered public offering) and
all other persons with registration rights (whether or not pursuant to this
Agreement) are bound by and have entered into a similar agreement and the
restrictions on transfer have not been waived in whole or in part with respect
to any such executive officers, directors, holders or persons.
Section 6. Registration Procedures.
(a) Obligations of the Company. Whenever required to register any
Registrable Securities, the Company shall as expeditiously as practicable:
(1) prepare and, as soon as practicable, but in any event in the case
of a registration pursuant to Section 3 within the time provided in Section
3, file with the SEC a Registration Statement on the appropriate form and
use reasonable best efforts to cause the Registration Statement to become
effective. At least ten (10) days before filing a Registration Statement or
prospectus or at least three (3) business days before filing any amendments
or supplements thereto, the Company will furnish to the counsel of the
holders of a majority of the Registrable Securities being registered copies
of all documents proposed to be filed for that counsel's review and
approval, which approval shall not be unreasonably withheld or delayed;
(2) immediately notify each seller of Registrable Securities of any
stop order threatened or issued by the SEC and take all actions reasonably
required to prevent the entry of a stop order or if entered to have it
rescinded or otherwise removed;
(3) prepare and file with the SEC such amendments and supplements to
the Registration Statement and the corresponding prospectus necessary to
keep the Registration Statement effective, in the case of the registration
required by Section 3 hereof for the period provided in Section 3 and in
any other case for 90 days or such shorter period as may be required to
sell all Registrable Securities covered by the Registration Statement; and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Registration Statement during
each period in accordance with the sellers' intended methods of disposition
as set forth in the Registration Statement;
(4) furnish to each seller of Registrable Securities a sufficient
number of copies of the Registration Statement, each amendment and
supplement thereto (in each case including all exhibits), the corresponding
prospectus (including each preliminary prospectus), and such other
documents as a seller may reasonably request to facilitate the disposition
of the seller's Registrable Securities;
(5) use its best efforts to register or qualify the Registrable
Securities under securities or blue sky laws of jurisdictions in the United
States of America as any seller requests within twenty (20) days following
the original filing of a Registration Statement and do any and all other
reasonable acts and things that may be necessary or advisable to enable the
seller to consummate the disposition of the seller's Registrable Securities
in such jurisdiction; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation to do business under the laws
10
of any jurisdiction in which it is not then qualified or to file any
general consent to service of process;
(6) notify each seller of Registrable Securities, at any time when a
prospectus is required to be delivered under the Securities Act, of any
event as a result of which the prospectus or any document incorporated
therein by reference contains an untrue statement of a material fact or
omits to state any material fact necessary to make the statements therein
not misleading in light of the circumstances under which such statements
were made, and use reasonable best efforts to prepare a supplement or
amendment to the prospectus or any such document incorporated therein so
that thereafter the prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which
such statements were made;
(7) cause all registered Registrable Securities to be listed on each
securities exchange or quotation system, if any, on which similar
securities issued by the Company are then listed;
(8) provide an institutional transfer agent and registrar and a CUSIP
number for all Registrable Securities on or before the effective date of
the Registration Statement;
(9) enter into such customary agreements, including an underwriting
agreement in customary form (which underwriting agreement shall include a
"lock-up" agreement regarding offers or sales by the Company, in customary
form and with such duration as may be reasonably requested by the
underwriters), and take all other actions in connection with those
agreements as the holders of a majority of the Registrable Securities being
registered or the underwriters, if any, reasonably request to expedite or
facilitate the disposition of the Registrable Securities;
(10) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to
the Registration Statement, and any attorney, accountant, or other agent of
any such seller or underwriter, all financial and other records, pertinent
corporate documents, and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any seller, underwriter, attorney, accountant, or other agent
in connection with the Registration Statement; provided that an appropriate
confidentiality agreement is executed by any such seller, underwriter,
attorney, accountant or other agent;
(11) in connection with any underwritten offering, obtain a "comfort"
letter from the Company's independent public accountants in customary form
and covering those matters customarily covered by "comfort" letters as the
holders of a majority of the Registrable Securities being registered or the
managing underwriter reasonably request (and, if the Company is able after
using its reasonable efforts, the letter shall be addressed to holders of
the Registrable Securities, the Company and the underwriters);
11
(12) in connection with any underwritten offering, furnish, at the
request of the holders of a majority of the Registrable Securities being
registered or underwriter(s) of the offering, an opinion of counsel
representing the Company for the purposes of the registration, in the form
and substance customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to counsel representing the holders of
Registrable Securities being registered and the underwriter(s) of the
offering, addressed to the underwriters and to the holders of the
Registrable Securities being registered;
(13) use its best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable, an earnings statement complying with the
provisions of Section 11(a) of the Securities Act and covering the period
of at least twelve (12) months, but not more than eighteen (18) months,
beginning with the first month after the effective date of the Registration
Statement;
(14) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be
made with the NASD or Nasdaq;
(15) make available members of management of the Company for
assistance in the selling effort relating to the Registrable Securities
covered by such registration, including, but not limited to, the
participation of such members of the Company's management in presentations
to potential purchasers; and
(16) take all other steps reasonably necessary to effect the
registration of the Registrable Securities contemplated hereby.
(b) Seller Information. In the event of any registration by the Company,
from time to time, the Company may require each seller of Registrable Securities
subject to the registration to furnish to the Company information regarding such
seller, the Registrable Securities held by it, and the distribution of the
securities subject to the registration, and such seller shall furnish all such
information reasonably requested by the Company.
(c) Notice to Discontinue. Each holder of Registrable Securities agrees by
acquisition of such securities that, upon receipt of any notice from the Company
of any event of the kind described in Section 6(a)(6), the holder will
discontinue disposition of Registrable Securities until the holder receives
copies of the supplemented or amended prospectus contemplated by Section
6(a)(6). In addition, if the Company requests, the holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in the holder's possession, of the prospectus covering the Registrable
Securities current at the time of receipt of the notice. If the Company gives
any such notice, the time period mentioned in Section 6(a)(3) shall be extended
by the number of days elapsing between the date of notice and the date that each
seller receives the copies of the supplemented or amended prospectus
contemplated in Section 6(a)(6).
12
(d) Notice by Holders. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, those holders shall notify the Company, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event concerning that holder of the Registrable Securities, as
a result of which the prospectus included in the Registration Statement contains
an untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
Section 7. Registration Expenses.
(a) Generally. All Registration Expenses incurred in connection with the
Company's performance of or compliance with this Agreement shall be paid as
provided in this Agreement. The term "Registration Expenses" includes without
limitation all registration filing fees, reasonable professional fees and other
reasonable expenses of the Company's compliance with federal, state and other
securities laws (including fees and disbursements of counsel for the
underwriters in connection with state or other securities law qualifications and
registrations), printing expenses, messenger, telephone and delivery expenses;
reasonable fees and disbursements of counsel for the Company and up to $25,000
for reasonable fees and disbursements of counsel for the selling Investor
Stockholders; reasonable fees and disbursement of the independent certified
public accountants selected by the Company (including the expenses of any audit
or "comfort" letters required by or incident to performance of the obligations
contemplated by this Agreement); fees and expenses of the underwriters
(excluding discounts and commissions); fees and expenses of any special experts
retained by the Company at the request of the managing underwriters in
connection with the registration; and applicable stock exchange, NASD and Nasdaq
registration and filing fees. The term "Registration Expenses" does not include
the Company's internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit and the fees and expenses incurred in connection
with the listing of the securities to be registered on each securities exchange
on which similar securities issued by the Company are then listed, all of which
shall be paid by the Company, nor does it include underwriting fees or
commissions or transfer taxes, all of which shall be paid by each of the sellers
of Registrable Securities with respect to the Registrable Securities sold by
such seller. For the avoidance of doubt, the parties hereto acknowledge and
agree that any and all fees and expenses of underwriters retained in connection
with a plan of distribution of the Registrable Securities described in Section 3
are expressly excluded from the definition of "Registration Expenses" above.
(b) Other Expenses. To the extent the Company is not required to pay
Registration Expenses, each holder of securities included in any registration
will pay those Registration Expenses allocable to the holder's securities so
included, and any Registration Expenses not allocable will be borne by all
sellers in proportion to the number of securities each registers.
Section 8. Indemnification.
(a) Indemnification by Company. In the event of any registration of
Registrable Securities under the Securities Act pursuant to this Agreement, to
the full extent permitted by law, the Company agrees to indemnify and hold
13
harmless each holder of Registrable Securities, its officers, directors,
trustees, partners, employees, advisors and agents, and each Person who controls
(within the meaning of the Securities Act and the Exchange Act) the holder
against any and all losses, claims, damages, liabilities and expenses arising
out of (i) any untrue or allegedly untrue statement of material fact contained
in any Registration Statement or any amendment thereof under which such
Registrable Securities were registered under the Securities Act, any prospectus
or preliminary prospectus contained therein or any amendment thereof or any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which such statements were made, except to the extent
the untrue statement or omission resulted from information that the holder
furnished in writing to the Company expressly for use therein, and (ii) any
failure to comply with any law, rule or regulation applicable to such
registration. Such indemnity shall remain in full force and effect, regardless
of any investigation made by such indemnified party, and shall survive the
transfer of such Registrable Securities by such holder. In connection with a
firm or best efforts underwritten offering, to the extent customarily required
by the managing underwriter, the Company will indemnify the underwriters, their
officers and directors and each Person who controls (within the meaning of the
Securities Act and the Exchange Act) the underwriters, to the extent customary
in such agreements.
(b) Indemnification by Holders of Securities. In connection with any
Registration Statement, each participating holder of Registrable Securities will
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any registration statement or
prospectus and each participating holder agrees, severally and not jointly, to
indemnify and hold harmless, to the extent permitted by law, the Company, its
directors, officers, trustees, partners, employees, advisors and agents, and
each Person who controls (within the meaning of the Securities Act and the
Exchange Act) the Company against any and all losses, claims, damages,
liabilities and expenses arising out of any untrue or allegedly untrue statement
of a material fact or any omission or alleged omission to state a material fact
required to be stated in the registration statement or prospectus or any
amendment thereof or supplement thereto necessary to make the statements therein
not misleading in light of the circumstances under which such statements were
made, but only to the extent that the untrue statement or omission is contained
in or omitted from any information or affidavit the holder furnished in writing
to the Company expressly for use therein and only in an amount not exceeding the
net proceeds received by the holder with respect to securities sold pursuant to
such registration statement. Such indemnity shall remain in full force and
effect, regardless of any investigation made by the Company, and shall survive
the transfer of such Registrable Securities by such holder. In connection with a
firm or best efforts underwritten offering, to the extent customarily required
by the managing underwriter, each participating holder of Registrable Securities
will indemnify the underwriters, their officers and directors and each Person
who controls the underwriters (within the meaning of the Securities Act and the
Exchange Act), to the same extent as it has indemnified the Company; provided,
that the indemnity obligations of any holder contained in such agreement shall
be limited to the amount of such holder's net proceeds received from the sale of
its Registrable Securities in such offering.
(c) Indemnification Proceedings. Any Person entitled to indemnification
under this Agreement will (i) give prompt notice to the indemnifying party of
any claim with respect to which it seeks indemnification and (ii) unless in the
indemnified party's reasonable judgment a conflict of interest may exist between
14
the indemnified and indemnifying parties with respect to the claim, permit the
indemnifying party to assume the defense of the claim with counsel reasonably
satisfactory to the indemnified party. If the indemnifying party does not assume
the defense, the indemnifying party will not be liable for any settlement made
without its consent (but that consent may not be unreasonably withheld). No
indemnifying party will consent to entry of any judgment or will enter into any
settlement that does not include as an unconditional term thereof the claimant's
or plaintiff's release of the indemnified party from all liability concerning
the claim or litigation or which includes any non-monetary settlement. An
indemnifying party who is not entitled to or elects not to assume the defense of
a claim will not be under an obligation to pay the fees and expenses of more
than one counsel for all parties indemnified by the indemnifying party with
respect to the claim, unless in the reasonable judgment of any indemnified party
a conflict of interest may exist between the indemnified party and any other
indemnified party with respect to the claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of no more than one
additional counsel for the indemnified parties.
(d) Contribution. If the indemnification provided for in Section 8(a) or
(b) is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each indemnifying
party thereunder shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnified party and the indemnifying party in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the indemnified party and the indemnifying party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnified party and the
indemnifying party and the parties' relative intent and knowledge.
The parties hereto agree that it would not be just and equitable if
contribution pursuant this Section 8(d) were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding anything herein to the contrary, no participating holder of
Registrable Securities acting as an indemnifying party shall be required to
contribute any amount in excess of the amount by which the net proceeds of the
offering (before deducting expenses, if any) received by such participating
holder exceeds the amount of any damages that such participating holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
The obligations of the Company and the holders of Registrable Securities
under this Section 8 shall survive the completion of any offering of Registrable
Securities in a registration statement, including the termination of this
Agreement.
Section 9. Rule 144. With a view to making available to the holders of
Registrable Securities the benefits of certain rules and regulations of the SEC
15
which may permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
(b) File with the SEC, in a timely manner, all reports and other documents
required of the Company under the Exchange Act; and
(c) So long as a holder owns any Registrable Securities, furnish to such
holder forthwith upon request; a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 of the Securities
Act, and of the Exchange Act; a copy of the most recent annual or quarterly
report of the Company; and such other reports and documents as a holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
Section 10. Participation in Underwritten Registration. No Person may
participate in any underwritten registration without (a) agreeing to sell
securities on the basis provided in underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements (the holders of
Registrable Securities in a registration pursuant to Section 3 and the Company
in a piggyback registration pursuant to Section 4(d)), and (b) completing and
executing all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required by the underwriting arrangements.
Section 11. Termination. This Agreement shall terminate with respect to a
holder of Registrable Securities as of such time such holder is entitled to rely
on Rule 144(k) for sales of Registrable Securities without registration under
the Securities Act and without compliance with the public information, sales
volume, manner of sale or notice requirements of Rule 144 (c), (e), (f) or (h).
Section 12. Suspension of Registration Statement. The Company shall be
permitted to suspend the effectiveness of any Registration Statement hereunder
if (i) the Company provides at least 10 days' prior written notice to the
Investor Stockholders of the Company's intention to make a public offering of
its Common Stock within 30 days of such notice, other than a Registration
Statement filed pursuant to Section 3 hereof or (ii) a merger, acquisition,
business combination or other material transaction has been proposed and is
being actively considered by the Company and notice of the same is provided to
the Investor Stockholders. Notwithstanding anything to the contrary in this
Section 12, the Company shall not be permitted to suspend the effectiveness of
any Registration Statement hereunder for more than 30 consecutive days at any
one time or more than 60 days in any 12-month period.
Section 13. Miscellaneous.
(a) Recapitalizations, Exchanges, etc. The provisions of this Agreement
shall apply to the full extent set forth herein with respect to (i) the
Registrable Securities, (ii) any and all shares of voting common stock of the
Company into which the Registrable Securities are converted, exchanged or
16
substituted in any recapitalization or other capital reorganization by the
Company and (iii) any and all equity securities of the Company or any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in conversion of, in exchange for
or in substitution of, the Registrable Securities and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after December 10, 2004. The Company
shall use its best efforts to cause any successor or assign (whether by sale,
merger or otherwise) to enter into a new registration rights agreement with the
holders of Registrable Securities on terms substantially the same as this
Agreement as a condition of any such transaction.
(b) Amendment. This Agreement may be amended or modified only by a written
agreement executed by (i) the Company, (ii) a Pequot Majority in Interest and
(iii) a Constellation Majority in Interest. Section 3(b) of this Agreement shall
not be amended without the consent of the Executives. Any Amendment or
modification shall bind all of the parties hereto. Notwithstanding anything
contained in this Section 13(b) to the contrary, if any amendment to this
Agreement adversely affects the rights of one or more Investor Stockholder but
not all Investor Stockholders, the written agreement of and such adversely
affected Investor Stockholder shall be required prior to any such amendment.
(c) Attorneys' Fees. In any legal action or proceeding brought to enforce
any provision of this Agreement, the prevailing party shall be entitled to
recover all reasonable expenses, charges, court costs and attorneys' fees in
addition to any other available remedy at law or in equity.
(d) Benefit of Parties; Assignment. Subject to the terms and conditions of
the Purchase Agreement, the Amended and Restated Shareholders' Agreement dated
as of August 1, 2005, as amended, between the Company, the Executives and the
Investor Stockholders and this subsection (d), including, without limitation,
the transfer restrictions contained therein, all of the terms and provisions of
this Agreement shall be binding on and inure to the benefit of the parties and
their respective successors and assigns, including, without limitation, all
subsequent holders of securities entitled to the benefits of this Agreement who
agree in writing to become bound by the terms of this Agreement. The rights to
cause the Company to register Registrable Securities under this Agreement may be
transferred or assigned by such holder only to: (i) partners, members and
affiliates of such holder or (ii) a transferee or assignee who acquires at least
five percent (5%) of the Registrable Securities held by such holder and then
outstanding (or, if a smaller amount, the number of Registrable Securities held
by such holder on an as-converted and fully diluted basis), provided that the
Company is given written notice promptly following the time of such transfer or
assignment, stating the name and address of the transferee or assignee and
identifying the securities with respect to which such registration rights are
being transferred or assigned, and, provided further, that the transferee or
assignee of such rights assumes in writing prior to such transfer or assignment,
the obligations of such holder under this Agreement.
(e) Captions. The captions of the sections and subsections of this
Agreement are solely for convenient reference and shall not be deemed to affect
the meaning or interpretation of any provision of this Agreement.
17
(f) Cooperation. The parties agree that after execution of this Agreement
they will from time to time, upon the request of any other party and without
further consideration, execute, acknowledge and deliver in proper form any
further instruments and take such other action as any other party may reasonably
require to carry out effectively the intent of this Agreement.
(g) Counterparts; Facsimile Execution. This Agreement 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 agreement. Facsimile execution
and delivery of this Agreement shall be legal, valid and binding execution and
delivery for all purposes.
(h) Entire Agreement. Each party hereby acknowledges that no other party or
any other person or entity has made any promises, warranties, understandings or
representations whatsoever, express or implied, not contained in the Transaction
Documents (as defined in the Purchase Agreement) and acknowledges that it has
not executed this Agreement in reliance upon any such promises, representations,
understandings or warranties not contained herein or therein and that the
Transaction Documents supersede all prior agreements and understandings between
the parties with respect thereto. There are no promises, covenants or
undertakings other than those expressly set forth or provided for in the
Transaction Documents.
(i) Governing Law. The internal law of the State of New York will govern
the interpretation, construction, and enforcement of this Agreement and all
transactions and agreements contemplated hereby, notwithstanding any state's
choice of law rules to the contrary.
(j) No Inconsistent Agreements. Except for the registration rights granted
pursuant to the Initial Registration Rights Agreement, the Vector Registration
Rights Agreement and the Info Systems Piggyback Agreement, the Company
represents and warrants that it has not granted to any Person the right to
request or require the Company to register any securities issued by the Company.
For so long as at least 30% of the shares of Series A Preferred Stock issued by
the Company remain outstanding, the Company shall not, except with the prior
written consent of at least a majority in interest of the Registrable Securities
held by the Investor Stockholders, enter into any agreement with respect to its
securities that shall grant to any Person registration rights that in any way
conflict with or are prior to or equal in right to the rights provided under
this Agreement.
(k) Notices. All notices, requests, demands, or other communications that
are required or may be given pursuant to the terms of this Agreement shall be in
writing and properly addressed to the addresses of the parties set forth, (i)
with respect to the Company and the Investor Stockholders, in the Purchase
Agreement and (ii) with respect to the Executives, on the books and records of
the Company, or to such other address(es) as the respective parties hereto shall
from time to time designate to the other(s) in writing. All notices shall be
effective upon receipt.
(l) Specific Performance. Each of the parties agrees that damages for a
breach of or default under this Agreement would be inadequate and that in
addition to all other remedies available at law or in equity that the parties
and their successors and assigns shall be entitled to specific performance or
injunctive relief, or both, in the event of a breach or a threatened breach of
this Agreement.
18
Validity of Provisions. Should any part of this Agreement for any reason be
declared by any court of competent jurisdiction to be invalid, that decision
shall not affect the validity of the remaining portion, which shall continue in
full force and effect as if this Agreement had been executed with the invalid
portion eliminated; provided, however, that this Agreement shall be interpreted
to carry out to the greatest extent possible the intent of the parties and to
provide to each party substantially the same benefits as such party would have
received under this Agreement if such invalid part of this Agreement had been
enforceable. Whenever the words "include" or "including" are used in the
Agreement, they shall be deemed to be followed by the words "without
limitation."
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY:
-------
MTM TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
PEQUOT STOCKHOLDERS:
-------------------
PEQUOT PRIVATE EQUITY FUND III, L.P.
By: Pequot Capital Management, Inc.,
as Investment Manager
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: General Counsel
Notice to: Xxxxxx Xxxxxxxxx
C/o Pequot Capital
Management, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
With a copy to: Xxxxx Xxxxx, Esq.
Pequot Capital Management,
Inc.
000 Xxxx 00xx Xxxxxx
Citicorp Center, 00xx Xxxxx
Xxx Xxxx, XX 00000
PEQUOT OFFSHORE PRIVATE EQUITY PARTNERS III,
L.P.
By: Pequot Capital Management, Inc.,
as Investment Manager
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: General Counsel
Signature Page to Amended and Restated Registration Rights Agreement
Notice to: Xxxxxx Xxxxxxxxx
C/o Pequot Capital
Management, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
With a copy to: Xxxxx Xxxxx, Esq.
Pequot Capital Management,
Inc.
000 Xxxx 00xx Xxxxxx
Citicorp Center, 00xx Xxxxx
Xxx Xxxx, XX 00000
CONSTELLATION STOCKHOLDERS:
--------------------------
CONSTELLATION VENTURE CAPITAL II, L.P.
By: Constellation Ventures Management II,
LLC
Its General Partner
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Managing Director
Notice to: c/o Constellation Ventures
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
CONSTELLATION VENTURE CAPITAL OFFSHORE II,
L.P.
By: Constellation Ventures Management II,
LLC
Its General Partner
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Managing Director
Notice to: c/o Constellation Ventures
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Signature Page to Amended and Restated Registration Rights Agreement
THE BSC EMPLOYEE FUND VI, L.P.
By: Constellation Ventures Management II,
LLC
Its General Partner
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Managing Director
Notice to: c/o Constellation Ventures
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
CVC II PARTNERS, LLC
By: The Bear Xxxxxxx Companies Inc.
Its Managing Member
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Managing Director
Notice to: c/o Constellation Ventures
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXECUTIVES:
----------
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Signature Page to Amended and Restated Registration Rights Agreement
