EXHIBIT 10.2
AMENDMENT AND EXCHANGE AGREEMENT
AMENDMENT AND EXCHANGE AGREEMENT (this "AGREEMENT"), dated as
of January 18, 2007, by and among Raptor Networks Technology, Inc., a Colorado
corporation, with headquarters located at 0000 X. Xxxx Xxxx, Xxxxx 000, Xxxxx
Xxx, Xxxxxxxxxx 00000 (the "COMPANY"), and __________________ (the "INVESTOR").
WHEREAS:
A. The Company, the Investor and certain other investors (the
"OTHER INVESTORS", and collectively with the Investor, the "INVESTORS") are
parties to that certain Securities Purchase Agreement, dated as of July 30, 2006
(the "EXISTING SECURITIES PURCHASE AGREEMENT"), pursuant to which, among other
things, the Investors purchased from the Company (i) senior convertible notes
(the "EXISTING NOTES"), which are convertible into shares of the Company's
common stock, par value $0.001 per share (the "COMMON STOCK") (the Existing
Notes as converted, the "EXISTING CONVERSION SHARES"), in accordance with the
terms thereof, (ii) Series L Warrants (the "EXISTING SERIES L WARRANTS"), which
are exercisable into shares of Common Stock (the "EXISTING SERIES L WARRANT
SHARES"); and (iii) Series M Warrants (the "EXISTING SERIES M WARRANTS", and
together with the Existing Series L Warrants, the "EXISTING WARRANTS"), which
are exercisable into shares of Common Stock (the "EXISTING SERIES M WARRANT
SHARES", and together with the Existing Series L Warrant Shares, the "EXISTING
WARRANT SHARES").
B. In connection with the execution and delivery of the
Existing Securities Purchase Agreement, the Company entered into that certain
Registration Rights Agreement, dated July 31, 2006 (the "EXISTING REGISTRATION
RIGHTS AGREEMENT"), by and among the Company and the Investors, pursuant to
which the Company agreed to provide certain registration rights with respect to
the Registrable Securities (as defined in the Existing Registration Rights
Agreement) under the Securities Act of 1933, as amended (the "1933 ACT"), and
the rules and regulations promulgated thereunder, and applicable state
securities laws.
C. Prior to the date hereof, the Investor and the Company have
determined that, as a result of the manner that the Securities and Exchange
Commission ("SEC") is applying policy, the Company would not be able to comply
with all of its obligations under the Existing Registration Rights Agreement.
D. The Company and the Investor desire to enter into this
Agreement, pursuant to which, among other things, (i) the Company and the
Investor shall amend and restate all of such Investor's Existing Notes for notes
in the form attached hereto as Exhibit A in the principal amount set forth
opposite the Investor's name in column (3) on the Securities Schedule (the
"AMENDED AND RESTATED NOTES"), which shall be convertible into Common Stock (the
"AMENDED AND RESTATED CONVERSION SHARES"), (ii) the Company and the Investor
shall exchange all of such Investor's Existing Series L Warrants for warrants in
the form attached hereto as Exhibit B (the "REPLACEMENT SERIES L-1 WARRANTS")
which shall be exercisable to acquire that number of shares of Common Stock set
forth opposite the Investor's name in column (4) on the Securities Schedule
attached hereto (the "REPLACEMENT SERIES L-1 WARRANT SHARES"), and (iii) the
Company and the Investor shall exchange all of such Investor's Existing Series M
Warrants for warrants in the form attached hereto as Exhibit C (the "REPLACEMENT
SERIES M-1 WARRANTS", and together with the Replacement Series L-1 Warrants, the
"REPLACEMENT WARRANTS") which shall be exercisable to acquire that number of
shares of Common Stock set forth opposite the Investor's name in column (5) on
the Securities Schedule attached hereto (the "REPLACEMENT SERIES M-1 WARRANT
SHARES", and together with the Replacement Series L-1 Warrant Shares, the
"REPLACEMENT WARRANT SHARES").
E. In addition, the Investor wishes to purchase, and the
Company wishes to sell, upon the terms and conditions stated in this Agreement,
(i) an additional aggregate principal amount of senior convertible notes, in
substantially the form attached hereto as Exhibit D (the "ADDITIONAL NOTES", and
together with the Amended and Restated Notes, the "NOTES"), in the amount set
forth opposite the Investor's name in column (6) on the Securities Schedule
attached hereto (which aggregate amount for all Investors shall be $1,600,000)
(as converted, collectively, the "ADDITIONAL CONVERSION SHARES" and together
with the Amended and Restated Conversion Shares, the "CONVERSION SHARES"), (ii)
additional warrants, in substantially the form attached hereto as Exhibit E (the
"SERIES L-2 WARRANTS"), to acquire that number of shares of Common Stock set
forth opposite the Investor's name in column (7) on the Securities Schedule
attached hereto (as exercised, the "SERIES L-2 WARRANT SHARES") and (iii)
additional warrants in substantially the form attached hereto as Exhibit F (the
"SERIES M-2 WARRANTS" and together with the Series L-2 Warrants the "ADDITIONAL
WARRANTS" and the Additional Warrants together with the Replacement Warrants,
the "WARRANTS") to acquire that number of shares of Common Stock set forth
opposite the Investor's name in column (8) on the Securities Schedule attached
hereto (as exercised, the "SERIES M-2 WARRANT SHARES", and together with the
Series L-2 Warrant Shares, the "ADDITIONAL WARRANT SHARES", and together with
the Replacement Warrant Shares, the "WARRANT SHARES").
F. The amendment and restatement of the Existing Notes for the
Amended and Restated Notes and the exchange of the Existing Warrants for the
Replacement Warrants is being made in reliance upon the exemption from
registration provided by Section 3(a)(9) of the 1933 Act.
G. The issuance of the Additional Notes and the Additional
Warrants is being made in reliance upon the exemption from securities
registration afforded by Section 4(2) of the 1933 Act and Rule 506 of Regulation
D ("Regulation D") as promulgated by the SEC under the 1933 Act.
H. In connection with the execution and delivery of this
Agreement, the Company and the Investors are executing and delivering a
Registration Rights Agreement, substantially in the form attached hereto as
Exhibit G (the "AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT"), which
shall completely amend, restate and supersede the Existing Registration Rights
Agreement, pursuant to which the Company has agreed to provide certain
registration rights with respect to the Registrable Securities (as defined in
the Amended and Restated Registration Rights Agreement) under the 1933 Act and
the rules and regulations promulgated thereunder, and applicable state
securities laws.
I. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings ascribed to them in the Existing
Securities Purchase Agreement.
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NOW, THEREFORE, in consideration of the foregoing recitals and
the mutual promises hereinafter set forth, the Company and the Investor hereby
agree as follows:
1. AMENDMENT AND RESTATEMENT OF EXISTING NOTES; EXCHANGE
OF EXISTING WARRANTS; PURCHASE AND SALE OF ADDITIONAL
NOTES AND ADDITIONAL WARRANTS.
(a) AMENDMENT AND RESTATEMENT OF EXISTING NOTE;
EXCHANGE OF EXISTING Warrants. Subject to satisfaction (or waiver) of the
conditions set forth in Sections 5 and 6 below, at the closing contemplated by
this Agreement (the "CLOSING"), the Investor shall surrender to the Company its
Existing Note and its Existing Warrants and the Company shall issue and deliver
to the Investor (i) an Amended and Restated Note in the principal amount set
forth opposite the Investor's name in column (3) on the Securities Schedule,
(ii) the Series L-1 Warrants to acquire that number of Series L-1 Warrant Shares
as is set forth opposite the Investor's name in column (4) on the Securities
Schedule attached hereto and (iii) the Series M-1 Warrants to acquire that
number of Series M-1 Warrant Shares as is set forth opposite the Investor's name
in column (5) on the Securities Schedule.
(b) PURCHASE OF ADDITIONAL NOTES AND ADDITIONAL
WARRANTS. Subject to the satisfaction (or waiver) of the conditions set forth in
Sections 5 and 6 below, the Company shall issue and sell to the Investor at the
Closing, and the Investor agrees to purchase from the Company on the Closing
Date, (x) a principal amount of Additional Notes as is set forth opposite the
Investor's name in column (6) on the Securities Schedule attached hereto, (y)
Series L-2 Warrants to acquire that number of Series L-2 Warrant Shares as is
set forth opposite the Investor's name in column (7) on the Securities Schedule
attached hereto and (z) Series M-2 Warrants to acquire that number of Warrant
Shares as is set forth opposite the Investor's name in column (8) on the
Securities Schedule attached hereto. Notwithstanding any other provision of this
Agreement to the contrary, in the event that the Securities Schedule attached
hereto reflects that the Investor will not acquire any Additional Notes, Series
L-2 Warrants or Series M-2 Warrants, then the Investor shall not have any
obligations whatsoever with respect to such Additional Notes, Series L-2
Warrants or Series M-2 Warrants.
(c) PURCHASE PRICE. The purchase price for the
Additional Notes and the Additional Warrants to be purchased by the Investor at
the Closing (the "PURCHASE PRICE") shall be the amount set forth opposite the
Investor's name in column (9) of the Securities Schedule attached hereto (the
"PURCHASE PRICE"). The Investor shall pay $1.00 for each $1.00 of principal
amount of Additional Notes and the related Additional Warrants to be purchased
at the Closing.
(d) CLOSING DATE. The date and time of the Closing
(the "CLOSING DATE") shall be 10:00 a.m., New York Time, on January 19, 2007,
subject to notification of satisfaction (or waiver) of the conditions to the
Closing set forth in Sections 5 and 6 below (or such other time and date as is
mutually agreed to by the Company and the Investor). The Closing shall occur on
the Closing Date at the offices of Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
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(e) FORM OF PAYMENT. On the Closing Date, (i) the
Investor shall pay the Purchase Price to the Company for the Additional Notes
and the Additional Warrants to be issued and sold to the Investor at the Closing
by wire transfer of immediately available funds in accordance with the Company's
written wire instructions and (ii) the Company shall deliver to the Investor (A)
the Additional Notes (in the principal amounts as set forth opposite the
Investor's name in column (6) on the Securities Schedule attached hereto) which
the Investor is then purchasing, and (B) the Additional Warrants (in the amounts
as set forth opposite the Investor's name in columns (7) and (8) on the
Securities Schedule attached hereto) which the Investor is purchasing. In
addition, the Company shall deliver to the Investor (x) the Amended and Restated
Notes and (y) the Replacement Warrants. All of the foregoing securities shall be
delivered in each case duly executed on behalf of the Company and registered in
the name of the Investor or its designee (so long as any such designee is an
"accredited investor" as that term is defined in Rule 501(d) of Regulation D).
2. AMENDMENTS TO TRANSACTION DOCUMENTS.
(a) RATIFICATIONS. Except as otherwise expressly
provided herein, the Existing Securities Purchase Agreement and each other
Transaction Document is, and shall continue to be, in full force and effect and
is hereby ratified and confirmed in all respects, except that on and after the
Closing Date (i) all references in the Existing Securities Purchase Agreement to
"this Agreement", "hereto", "hereof", "hereunder" or words of like import
referring to the Securities Purchase Agreement shall mean the Existing
Securities Purchase Agreement as amended by this Agreement, (ii) all references
in the other Transaction Documents to the "Securities Purchase Agreement",
"thereto", "thereof", "thereunder" or words of like import referring to the
Securities Purchase Agreement shall mean the Existing Securities Purchase
Agreement as amended by this Agreement, (iii) all references in any of the
Transaction Documents to the "Registration Rights Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Registration
Rights Agreement shall mean the Amended and Restated Registration Rights
Agreement, and (iv) all references in any Transaction Document to a "Buyer"
shall include the Investor hereunder.
(b) Each of the Transaction Documents are hereby
amended as follows:
(i) All references to Notes shall be amended
to include additionally the Notes as defined in this Agreement.
(ii) All references to "Conversion Shares"
shall be amended to include additionally the Conversion Shares as defined in
this Agreement.
(iii) All references to "Warrants" shall be
amended to include additionally the Warrants as defined in this Agreement.
(iv) All references to "Warrant Shares"
shall be amended to include additionally the Warrant Shares as defined in this
Agreement.
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(v) The defined term "Transaction Documents"
is hereby amended to include this Agreement and the Amended and Restated
Registration Rights Agreement.
(c) The reference in Section 4(q)(i) of the Existing
Securities Purchase Agreement to "150,000,000 shares" is hereby amended to
instead refer to "200,000,000 shares."
(d) The reference in Section 4(q)(i) of the Existing
Securities Purchase Agreement to "Xxxxxxx Xxxx & Xxxxx LLP" is hereby amended to
instead refer to "and the legal counsel of each Buyer"; provided, however, that
any legal fees of counsel to Cedar Hill Capital Partners Onshore, LP, and Cedar
Hill Capital Partners Offshore, Ltd. related to the review of the proxy
statement referenced in Section 4(q)(i) of the Existing Securities Purchase
Agreement shall be limited to $5,000 in the aggregate.
3. REPRESENTATIONS AND WARRANTIES
(a) INVESTOR BRING DOWN. The Investor hereby
represents and warrants to the Company with respect to itself only as set forth
in Section 2 of the Existing Securities Purchase Agreement as to this Agreement
as if such representations and warranties were made as of the date hereof and
set forth in their entirety in this Agreement. Such representations and
warranties to the transactions thereunder and the securities issued thereby are
hereby deemed for purposes of this Agreement to be references to the
transactions hereunder and the issuance of the securities hereby.
(b) COMPANY BRING DOWN. Except as set forth on the
Amended and Restated Schedules attached hereto, which shall amend and restate
the Schedules attached to the Existing Securities Purchase Agreement, the
Company represents and warrants to the Investor as set forth in Section 3 of the
Securities Purchase Agreement as if such representations and warranties were
made as of the date hereof and set forth in their entirety in this Agreement.
Such representations and warranties to the transactions thereunder and the
securities issued thereby are hereby deemed for purposes of this Agreement to be
references to the transactions hereunder and the issuance of the securities
hereby, references therein to "Closing Date" being deemed references to the
Closing Date as defined in Section 1(d) above, and references to "the date
hereof" being deemed references to the date of this Agreement.
(c) NO EVENT OF DEFAULT. The Company represents and
warrants to the Investor that after giving effect to the terms of this Agreement
and the Other Agreements (as defined below), no Default or Event of Default (as
defined in the Notes) shall have occurred and be continuing as of the date
hereof.
(d) COMPANY NOTICE OF WITHDRAWN REGISTRATION
STATEMENT. The Company hereby notifies the Investors that: (i) the Company's
registration statement on Form SB-2 (File No. 333-136995) originally filed on
August 30, 2006 and the related offering was withdrawn effective December 13,
2006; and (ii) the Investors do not have the protection of Section 11 of the
1933 Act with respect to the transactions contemplated by this Agreement.
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(e) RIGHTS OF SECURITIES. The Additional Notes and
the Additional Warrants shall in no way provide superior or senior rights over
those of the Amended and Restated Notes and the Replacements Warrants,
respectively (including without limitation with respect to rights under the
Amended and Restated Registration Rights Agreement). The Company agrees that it
will not agree to favor or provide additional rights to the Additional Notes and
the Additional Warrants that are superior or senior over those of the Amended
and Restated Notes and the Replacements Warrants without the prior written
consent of the Investor and all the Other Investors.
4. CERTAIN COVENANTS AND AGREEMENTS; WAIVER
(a) BEST EFFORTS. Each party shall use its best
efforts timely to satisfy each of the conditions to be satisfied by it as
provided in Sections 5 and 6 of this Agreement.
(b) FORM D AND BLUE SKY. The Company agrees to file a
Form D with respect to the Securities (as defined in the Existing Securities
Purchase Agreement) as required under Regulation D and to provide a copy thereof
to the Investor reasonably promptly after such filing. The Company shall,
reasonably promptly (and in no event later than 15 days) after the Closing Date,
take such action as the Company shall reasonably determine is necessary (taking
into account The National Securities Markets Improvement Act of 1996, as
amended), in order to obtain an exemption for or to qualify the Securities for
sale to the Investor at the Closing pursuant to this Agreement under applicable
securities or "Blue Sky" laws of the states of the United States (or to obtain
an exemption from such qualification), and shall provide evidence of any such
action so taken to the Investor reasonably promptly after such filing. The
Company shall make all filings and reports relating to the offer and sale of the
Securities required under applicable securities or "Blue Sky" laws of the states
of the United States following the Closing Date. The Company shall have no
obligations with respect to the securities laws of any jurisdiction outside of
the United States, regardless of the foreign residence of the Investor.
(c) DISCLOSURE OF TRANSACTIONS AND OTHER MATERIAL
INFORMATION. On or before 8:30 a.m., New York City time, on the first Business
Day following the date of this Agreement, the Company shall issue a press
release and file a Current Report on Form 8-K describing the terms of the
transactions contemplated by this Agreement in the form required by the 1934 Act
and attaching the material Transaction Documents not previously filed
(including, without limitation, this Agreement, the form of the Amended and
Restated Notes, the form of the Additional Notes, the form of the Replacement
Warrants, the form of the Additional Warrants and the form of the Amended and
Restated Registration Rights Agreement) (including all attachments, the "8-K
FILING"). From and after the filing of the 8-K Filing with the SEC, the Investor
shall not be in possession of any material, nonpublic information received from
the Company, any of its Subsidiaries or any of its respective officers,
directors, employees or agents, that is not disclosed in the 8-K Filing. The
Company shall not, and shall cause each of its Subsidiaries and its and each of
their respective officers, directors, employees and agents, not to, provide the
Investor with any material, nonpublic information regarding the Company or any
of its Subsidiaries from and after the filing of the 8-K Filing with the SEC
without the express written consent of the Investor or as may be required under
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the terms of the Transaction Documents. If the Investor has, or believes it has,
received any such material, nonpublic information regarding the Company or any
of its Subsidiaries, it shall provide the Company with written notice thereof.
The Company shall, within five (5) Trading Days (as defined in the Note) of
receipt of such notice, make public disclosure of such material, nonpublic
information. In the event of a breach of the foregoing covenant by the Company,
any of its Subsidiaries, or any of its or their respective officers, directors,
employees and agents, in addition to any other remedy provided herein or in the
Transaction Documents, the Investor shall have the right to make a public
disclosure, in the form of a press release, public advertisement or otherwise,
of such material, nonpublic information without the prior approval by the
Company, its Subsidiaries, or any of its or their respective officers,
directors, employees or agents. The Investor shall not have any liability to the
Company, its Subsidiaries, or any of its or their respective officers,
directors, employees, stockholders or agents for any such disclosure. Subject to
the foregoing, neither the Company, its Subsidiaries nor the Investor shall
issue any press releases or any other public statements with respect to the
transactions contemplated hereby; provided, however, that the Company shall be
entitled, without the prior approval of the Investor, to make any press release
or other public disclosure with respect to such transactions (i) in substantial
conformity with the 8-K Filing and contemporaneously therewith and (ii) as is
required by applicable law and regulations (provided that in the case of clause
(i) the Investor shall be consulted by the Company in connection with any such
press release or other public disclosure prior to its release). Without the
prior written consent of the Investor, and except as contemplated by the prior
subsection (i) or as required by applicable law or regulation, neither the
Company nor any of its Subsidiaries or affiliates shall disclose the name of the
Investor in any filing, announcement, release or otherwise.
(d) FEES AND EXPENSES. The Company shall reimburse
the Investor for its legal and due diligence fees and expenses in connection
with the preparation and negotiation of this Agreement and transactions
contemplated thereby by paying any such amount to ________________ (the
"Investor Counsel Expense"), which amount may be withheld by the Investor from
its Purchase Price at the Closing. The Investor Counsel Expense shall be paid by
the Company whether or not the transactions contemplated by this Agreement are
consummated. Except as otherwise set forth in this Agreement, each party shall
pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all stamp and other taxes and duties levied in connection
with the issuance of the Amended and Restated Notes, the Replacement Warrants,
the Additional Notes and the Additional Warrants.
(e) WAIVER. Effective as of the Closing, the Investor
hereby waives (i) any and all Filing Failures and/or Effectiveness Failures (as
such terms are defined in the Existing Registration Rights Agreement) as well as
any and all defaults, fees and penalties under the Existing Securities Purchase
Agreement, the Existing Notes, the Existing Warrants and Existing Registration
Rights Agreement which arose solely on the basis of such Filing Failures and/or
Effectiveness Failures, that have occurred prior to Closing and (ii) any
defaults, fees and penalties under the Existing Notes which may have arisen
solely as a result of the Company's failure to pay the Installment Amounts due
on November 30, 2006, December 1, 2006 and January 1, 2007 and the Company's
failure to pay Interest due on January 1, 2007.
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5. CONDITIONS TO COMPANY'S OBLIGATIONS HEREUNDER.
The obligations of the Company to the Investor
hereunder are subject to the satisfaction of each of the following conditions,
provided that these conditions are for the Company's sole benefit and may be
waived by the Company at any time in its sole discretion by providing the
Investor with prior written notice thereof:
(a) The Investor shall have executed this Agreement
and the Amended and Restated Registration Rights Agreement and delivered the
same to the Company.
(b) The Investor shall have delivered to the Company
the Investor's Existing Note and Existing Warrants for cancellation.
(c) The Investor shall have delivered to the Company
the Purchase Price (less the amounts withheld pursuant to Section 4(d)) for the
Additional Notes and the related Additional Warrants being purchased by the
Investor at the Closing by wire transfer of immediately available funds pursuant
to the wire instructions provided by the Company.
(d) The representations and warranties of the
Investor shall be true and correct in all material respects as of the date when
made and as of the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date) and the
Investor shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Investor at or prior to the Closing
Date.
6. CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER.
The obligations of the Investor hereunder are subject
to the satisfaction of each of the following conditions, provided that these
conditions are for the Investor's sole benefit and may be waived by the Investor
at any time in its sole discretion by providing the Company with prior written
notice thereof:
(a) The Company shall have executed this Agreement
and the Amended and Restated Registration Rights Agreement and delivered the
same to the Investor.
(b) The Company shall have executed and delivered to
the Investor the Amended and Restated Notes, the Replacement Warrants, the
Additional Notes and the Additional Warrants being issued to such Investor at
the Closing.
(c) Each of the Other Investors shall have (i)
executed agreements identical to this Agreement (the "OTHER AGREEMENTS") (other
than proportional changes (the "PROPORTIONATE CHANGES") in the numbers
reflecting the different dollar amount of such Investor's Notes and the number
of Warrant Shares underlying such Investor's Warrants), (ii) satisfied or waived
all conditions to the closings contemplated by such agreements, (iii)
surrendered their Existing Notes and Existing Warrants for Amended and Restated
Notes and Replacement Warrants identical to the Amended and Restated Notes and
Replacement Warrants of the Investor hereunder (other than the Proportionate
Changes) and (iv) purchased Additional Notes and Additional Warrants identical
to the Additional Notes and Additional Warrants of the Investor hereunder (other
than the Proportionate Changes).
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(d) The Company shall have delivered to the Company's
transfer agent, with a copy to the Investors, a letter stating that the
Irrevocable Transfer Agent Instructions dated July 30, 2006 shall also apply to
the Amended and Restated Notes, Replacement Warrant Shares, Additional Notes and
Additional Warrants.
(e) The Investor shall have received the opinions of
Xxxxx and Xxxxxx, LLP, the Company's outside counsel, and Xxxx Xxxxx LLP, the
Company's special Colorado counsel, dated as of the Closing Date, in
substantially the form of EXHIBIT H attached hereto.
(f) The Company shall have delivered to the Investor
a certificate evidencing the formation and good standing of the Company and each
of its Subsidiaries in such entity's jurisdiction of formation issued by the
Secretary of State (or comparable office) of such jurisdiction, as of a date
within 10 days of the Closing Date.
(g) The Company shall have delivered to the Investor
a certificate evidencing the Company's qualification as a foreign corporation
and good standing issued by the Secretary of State (or comparable office) of
each jurisdiction in which the Company is required to be so qualified, as of a
date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor
a certified copy of the Articles of Incorporation as certified by the Secretary
of State (or comparable office) of the State of Colorado within ten (10) days of
the Closing Date.
(i) The Company shall have delivered to the Investor
a certificate, executed by the Secretary of the Company and dated as of the
Closing Date, as to (i) the resolutions approving the transactions contemplated
hereby as adopted by the Board in a form reasonably acceptable to the Investor,
(ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as
of the Closing, in the form attached hereto as EXHIBIT I.
(j) The representations and warranties of the Company
hereunder and under each other Transaction Document shall be true and correct in
all material respects as of the date when made and as of the Closing Date as
though made at that time (except for representations and warranties that speak
as of a specific date) and the Company shall have performed, satisfied and
complied in all respects with the covenants, agreements and conditions required
by the Transaction Documents to be performed, satisfied or complied with by the
Company at or prior to the Closing Date and after giving effect to the terms of
this Agreement and the Other Agreements, no default or Event of Default shall
have occurred and be continuing as of the Closing Date. The Investor shall have
received a certificate, executed by the Chief Executive Officer of the Company,
dated as of the Closing Date, to the foregoing effect and as to such other
matters as may be reasonably requested by the Investor in the form attached
hereto as EXHIBIT G.
(k) The Common Stock (I) shall be designated for
quotation or listed on the Principal Market and (II) shall not have been
suspended, as of the Closing Date, by the SEC or the Principal Market from
trading on the Principal Market nor shall suspension by the SEC or the Principal
Market have been threatened, as of the Closing Date, either (A) in writing by
the SEC or the Principal Market or (B) by falling below the minimum listing
maintenance requirements of the Principal Market.
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(l) Subject to obtaining the Stockholder Approval,
the Company shall have obtained all governmental, regulatory or third party
consents and approvals, if any, necessary for the sale of the Securities.
(i) All rights of first refusal, participation, or
similar rights that would entitle any Person to participate in the transactions
contemplated hereby shall have expired or have been waived.
(m) The Company shall have delivered to the Investor
such other documents relating to the transactions contemplated by this Agreement
as the Investor or its counsel may reasonably request. 7. TERMINATION.
In the event that the Closing does not occur by
January 22, 2007, due to the Company's or the Investor's failure to satisfy the
conditions set forth in Sections 5 and 6 hereof (and the nonbreaching party's
failure to waive such unsatisfied conditions(s)), the nonbreaching party shall
have the option to terminate this Agreement at the close of business on such
date without liability of any party to any other party; PROVIDED, HOWEVER, if
this Agreement is terminated pursuant to this Section 7, the Company shall
remain obligated to reimburse the Investor for the expenses described in Section
4(d) above. Upon such termination, the terms hereof shall be null and void and
the parties shall continue to comply with all terms and conditions of the
Transaction Documents, as in effect prior to the execution of this Agreement.
8. MISCELLANEOUS.
(a) COUNTERPARTS. This Agreement may be executed in
two or more identical counterparts, all of which shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original, not
a facsimile signature.
(b) HEADINGS. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
(c) SEVERABILITY. If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
(d) GOVERNING LAW; JURISDICTION; JURY TRIAL. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of
-10-
New York. Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts sitting in The City of New York, Borough of
Manhattan, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
(e) NO THIRD PARTY BENEFICIARIES. This Agreement is
intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person.
(f) FURTHER ASSURANCES. Each party shall do and
perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
(g) NO STRICT CONSTRUCTION. The language used in this
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against
any party.
(h) ENTIRE AGREEMENT; EFFECT ON PRIOR AGREEMENTS;
AMENDMENTS. Except for the Transaction Documents (to the extent any such
Transaction Document in effect prior to this Agreement is not amended by this
Agreement), this Agreement supersedes all other prior oral or written agreements
between the Investor, the Company, their affiliates and Persons acting on their
behalf with respect to the matters discussed herein, and this Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Investor
makes any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be amended other than by an
instrument in writing signed by the Company. No provision hereof may be waived
other than by an instrument in writing signed by the party against whom
enforcement is sought. No consideration shall be offered or paid to any Person
-11-
to amend or consent to a waiver or modification of any provision of any of the
Transaction Documents unless the same consideration also is offered to all of
the parties to the Transaction Documents, holders of Notes or holders of the
Warrants, as the case may be. The Company has not, directly or indirectly, made
any agreements with any of the Investors relating to the terms or conditions of
the transactions contemplated by the Transaction Documents except as set forth
in the Transaction Documents.
(i) NOTICES. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one Business Day
after deposit with an overnight courier service, in each case properly addressed
to the party to receive the same. The addresses and facsimile numbers for such
communications shall be:
If to the Company:
Raptor Networks Technology, Inc.
0000 X. Xxxx Xxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
With a copy to:
Xxxxx & Xxxxxx, LLP
000 Xxxxx Xxxx., 00xx Xxxxx
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
If to the Investor, to its address and facsimile number set forth in the
Securities Schedule attached hereto, with copies to the Investor's
representatives as set forth on the Securities Schedule attached hereto or on
the signature page to this Agreement,
with a copy (for informational purposes only) to:
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
-12-
or to such other address and/or facsimile number and/or to the attention of such
other Person as the recipient party has specified by written notice given to
each other party five (5) days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C)
provided by an overnight courier service shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from an overnight courier
service in accordance with clause (i), (ii) or (iii) above, respectively.
(j) SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns in accordance with the terms of the Existing Securities
Purchase Agreement.
(k) SURVIVAL. Unless this Agreement is terminated
under Section 7, the representations and warranties of the Company and the
Investor contained herein and the agreements and covenants set forth herein
shall survive the Closing.
(l) REMEDIES. The Investor and each holder of the
Securities shall have all rights and remedies set forth in the Transaction
Documents and all rights and remedies which such holders have been granted at
any time under any other agreement or contract and all of the rights which such
holders have under any law. Any Person having any rights under any provision of
this Agreement shall be entitled to enforce such rights specifically (without
posting a bond or other security), to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights granted by law.
Furthermore, the Company recognizes that in the event that it fails to perform,
observe, or discharge any or all of its obligations under this Agreement, any
remedy at law may prove to be inadequate relief to the Investor. The Company
therefore agrees that the Investor shall be entitled to seek temporary and
permanent injunctive relief in any such case without the necessity of proving
actual damages and without posting a bond or other security.
(m) INDEMNIFICATION. In consideration of the
Investor's execution and delivery of the Transaction Documents and acquiring the
Securities thereunder and in addition to all of the Company's other obligations
under the Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless the Investor and each other holder of the Securities and all
of their stockholders, partners, members, officers, directors, employees and
direct or indirect investors and any of the foregoing Persons' agents or other
representatives (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) (collectively, the
"INDEMNITEES") from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Indemnitee is a party to
the action for which indemnification hereunder is sought), and including
reasonable attorneys' fees and disbursements (the "INDEMNIFIED LIABILITIES"),
incurred by any Indemnitee as a result of, or arising out of, or relating to (a)
any misrepresentation or breach of any representation or warranty made by the
Company in the Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby, (b) any breach of any covenant,
agreement or obligation of the Company contained in the Transaction Documents or
any other certificate, instrument or document contemplated hereby or thereby or
(c) any cause of action, suit or claim brought or made against such Indemnitee
-13-
by a third party (including for these purposes a derivative action brought on
behalf of the Company) and arising out of or resulting from (i) the execution,
delivery, performance or enforcement of the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, (ii) any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of the issuance of the Securities, (iii) any
disclosure made by the Investor pursuant to Section 4(c), or (iv) the status of
the Investor or holder of the Securities as an investor in the Company pursuant
to the transactions contemplated by the Transaction Documents. To the extent
that the foregoing undertaking by the Company may be unenforceable for any
reason, the Company shall make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. Except as otherwise set forth herein, the mechanics and
procedures with respect to the rights and obligations under this Section 8(m)
shall be the same as those set forth in Section 6 of the Amended and Restated
Registration Rights Agreement. This Section 8(m) shall not apply to any
Indemnified Liabilities to the extent that such Indemnified Liabilities result
from or relate to the willful misconduct or gross negligence of the Investor.
(n) INDEPENDENT NATURE OF INVESTOR'S OBLIGATIONS AND
RIGHTS. The obligations of the Investor under any Transaction Document are
several and not joint with the obligations of any Other Investor, and the
Investor shall not be responsible in any way for the performance of the
obligations of any Other Investor under any Transaction Document. Nothing
contained herein or in any other Transaction Document, and no action taken by
the Investor pursuant hereto, shall be deemed to constitute the Investor and
Other Investors as a partnership, an association, a joint venture or any other
kind of entity, or create a presumption that the Investor and Other Investors
are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by the Transaction Documents. The Company and
the Investor confirm that the Investor has independently participated in the
negotiation of the transactions contemplated hereby with the advice of its own
counsel and advisors. The Investor shall be entitled to independently protect
and enforce its rights, including, without limitation, the rights arising out of
this Agreement or out of any other Transaction Documents, and it shall not be
necessary for any Other Investor to be joined as an additional party in any
proceeding for such purpose.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Investor and the Company have caused
their respective signature page to this Agreement to be duly executed as of the
date first written above.
COMPANY:
RAPTOR NETWORKS TECHNOLOGY, INC.
By: /S/ XXXXXX X. XXXXXXXXXXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxxxxxxx
Title: Chief Executive Officer
[Signature Page to Amendment and Exchange Agreement]
IN WITNESS WHEREOF, the Investor and the Company have caused
their respective signature page to this Agreement to be duly executed as of the
date first written above.
INVESTOR:
By: /S/ [AUTHORIZED REPRESENTATIVE OF INVESTOR]
-------------------------------------------
Name:
Title:
Copy to:
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
[Signature Page to Amendment and Exchange Agreement]
SECURITIES SCHEDULE
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
AGGREGATE
PRINCIPAL AGGREGATE LEGAL
ADDRESS AMOUNT OF NUMBER OF NUMBER OF PRINCIPAL NUMBER OF NUMBER OF REPRESENTATIVE'S
AND AMENDED AND SERIES L-1 SERIES M-1 AMOUNT OF SERIES L-2 SERIES M-2 ADDRESS AND
FACSIMILE RESTATED WARRANT WARRANT ADDITIONAL WARRANT WARRANT PURCHASE FACSIMILE
INVESTOR NUMBER NOTES SHARES SHARES NOTES SHARES SHARES PRICE NUMBER
------------------------------------------------------------------------------------------------------------------------------------
CASTLERIGG c/x Xxxxxxx $4,322,946 12,287,249 4,437,062 $1,600,000 7,281,332 2,366,433 $1,600,000 Xxxxxxx Xxxx &
MASTER Asset Xxxxx LLP
INVESTMENTS Management 000 Xxxxx Xxxxxx
LTD. 00 Xxxx 00xx 00000
Xx Xxxxxxxxx: Xxxxxxx
00xx Xxxxx Xxxxx, Xxx.
Xxx Xxxx, XX Facsimile:
10019 (000) 000-0000
Attention: Telephone:
Cem (000) 000-0000
Hacioglu/Xxxxxxx
Xxxxxxx
Fax:
000-000-0000
Telephone:
000-000-0000
Residence:
British
Virgin
Islands
CEDAR HILL 747 Third $1,556,260 4,423,410 1,597,342 NA NA NA XX Xxxxx & Xxxxxxxx LLC
CAPITAL Avenue, 33rd 551 5th Avenue
PARTNERS Floor New York, New York
ONSHORE, LP Xxx Xxxx, XX 00000
10017 Attention: Xxx
Attention: Xxxxxxx, Esq.
Xxxxxxx Facsimile:
Cascarilla (000) 000-0000
Facsimile: Telephone:
(212) (000) 000-0000
000-0000
Telephone:
(212)
821-1491
Residence:
New York
CEDAR HILL 747 Third $1,325,703 3,768,089 1,360,699 NA NA NA XX Xxxxx & Xxxxxxxx LLC
CAPITAL Avenue, 33rd 551 5th Avenue
PARTNERS Floor New York, New York
OFFSHORE, Xxx Xxxx, XX 00000
LTD. 10017 Attention: Xxx
Attention: Xxxxxxx, Esq.
Xxxxxxx Facsimile:
Cascarilla (000) 000-0000
Facsimile: Telephone:
(212) (000) 000-0000
000-0000
Telephone:
(212)
821-1491
Residence:
Cayman
Islands
