MTM TECHNOLOGIES, INC. AMENDMENT NO. 2 TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit
10.3
AMENDMENT
NO. 2
TO
AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT
This
Amendment No. 2 (this "Amendment
No.2")
to the
Amended and Restated Registration Rights Agreement dated December 10, 2004,
as
amended by Amendment No. 1 on November 23, 2005 (the “Registration
Rights Agreement”),
among
(a) MTM Technologies, Inc., a New York corporation (the "Company"), (b) Xxxxxx
Xxxxxxx, a natural person, (c) Xxxxxx Xxxxxx, a natural person (Messrs. Xxxxxxx
and Xxxxxx collectively, the “Executives”),
(d)
Pequot Private Equity Fund III, L.P. and Pequot Offshore Private Equity Partners
III, L.P., (collectively, the “Pequot
Stockholders”),
and
(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
(collectively, the “Constellation
Stockholders”
and
collectively with the Pequot Stockholders, the “Investor
Stockholders”)
is
entered into as of March 29, 2007. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the
Registration Rights Agreement.
Background
WHEREAS,
the Company has entered into a Securities Purchase Agreement (the “Series
A-6 Purchase Agreement”)
among
the Company, the Pequot Stockholder and the Constellation Stockholders dated
as
of even date whereby provisions were made for the purchase, sale and issuance
of
2,020,202 shares of Series A-6 Preferred Stock (the “Series
A-6 Preferred Stock”)
and
detachable warrants to purchase up to 610,000 shares (as such amount may be
adjusted in accordance with the terms thereof) of the Company’s common stock (
the “Series
A-6 Warrants”);
WHEREAS,
simultaneously with, and as a condition to, entering into the Purchase
Agreement, the Investor Stockholders are entering into this Amendment No. 2
in
order to amend the Registration Rights Agreement and to provide certain
registration and other rights with respect to the Series A-6 Preferred Stock
and
Series A-6 Warrants to be issued in connection with the Purchase Agreement;
and
WHEREAS,
pursuant to Section 13(b) of the Registration Rights Agreement, this Amendment
No. 2 requires the consent of the Company, a Pequot Majority in Interest and
a
Constellation Majority in Interest.
NOW,
THEREFORE, in consideration of the mutual premises and agreements contained
herein, and intending to be legally bound hereby, the parties hereto agree
as
follows:
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1.
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Amendments.
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(a) A
new
seventh recital to the Registration Rights Agreement shall be added after the
sixth recital as follows:
WHEREAS,
pursuant to a Purchase Agreement, dated as of even date herewith (as the same
may be amended or supplemented, the “Series
A-6 Purchase Agreement”),
among
the Company and the Investor Stockholders, the Company issued and sold and
the
Investor Stockholders purchased 2,020,202 shares of Series A-6 convertible
preferred stock, par value $0.001 per share (the “Series
A-6 Preferred Stock”)
and
detachable warrants to purchase up to 610,000 shares (as such amount may be
adjusted in accordance with the terms thereof) of the Company’s common stock (
the “Series
A-6 Warrants”);
(b) A
new
eighth recital to the Registration Rights Agreement shall be added after the
new
seventh recital as follows:
WHEREAS,
simultaneously with, and as a condition to, the closing of the transactions
contemplated by the A-6 Purchase Agreement, the Company and the Investor
Stockholders are entering into this Amendment No. 2, in order to amend the
Registration Rights Agreement and to provide certain registration and other
rights with respect to the Common Stock held by or issuable to the Investor
Stockholders pursuant to the A-6 Purchase Agreement;
(c) The
following definitions in Section 1 of the Registration Rights Agreement shall
be
amended in their entirety and replaced with the following:
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(i)
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“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, the Purchase Agreement and the
Series
A-6 Purchase Agreement.
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(ii)
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“Pequot
Majority in Interest.” The Pequot Stockholders holding at least a majority
of the shares of Common Stock issued or issuable, directly or indirectly,
upon conversion or exercise of the Shares and Warrants purchased
by such
Pequot Stockholders in accordance with the Initial Series A Purchase
Agreement, the Purchase Agreement and the Series A-6 Purchase
Agreement.
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(iii)
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“Series
A Preferred Stock.” The Series A-1 Preferred Stock, Series A-2 Preferred
Stock, Series A-3 Preferred Stock, Series A-4 Preferred Stock, Series
A-5
Preferred Stock, and Series A-6 Preferred Stock
collectively.
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2
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(iv)
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“Shares.”
The shares of Series A Preferred Stock issued to the Investor Stockholders
in accordance with the Initial Series A Purchase Agreement, the Purchase
Agreement and the Series A-6 Purchase
Agreement.
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(v)
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“Warrants.”
The Series X-0 Xxxxxxxx, Xxxxxx X-0 Xxxxxxxx, Series A-3 Warrants,
Series
A-4 Warrants, the Series A-5 Warrants and the Series A-6 Warrants
issued
to the Investor Stockholders.
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(d) The
Following definition shall be added to Section 1 of the Registration Rights
Agreement:
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(i)
|
“Series
A-6 Preferred Stock” As defined in the seventh recital hereof.
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This
definition shall be inserted after the definition of “Series A-5
Warrants”
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(ii)
|
“Series
A-6 Warrants” as defined in the seventh recital hereof.
|
This
definition shall be inserted after the definition of “Series A-6 Preferred
Stock.”
(e) The
last
sentence of Section 3(d) that reads “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” shall be replaced in its entirety as follows:.
“Liquidated
damages payable pursuant to this Section 3(d) may be paid in such securities
valued at the price paid for such securities.”
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2.
|
Entire
Agreement.
This Amendment No.2 and the Registration Rights Agreement are to
be read
together as one instrument. The Registration Rights Agreement shall
remain
in full force and effect, except as modified
hereby.
|
|
3.
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Governing
Law.
This Amendment No.2 is made pursuant to, and shall be governed by
and
construed in accordance with, the laws of the State of New York,
other
than provisions thereof relating to conflicts of
law.
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4.
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Counterparts.
This Amendment No.2 may be executed in any number of counterparts,
each of
which shall be considered an original and which shall together constitute
one instrument.
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5.
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Headings.
The titles and subtitles used in this Amendment No.2 are used for
convenience only and are not to be considered in construing or
interpreting this Amendment No.2.
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[Remainder
of this page intentionally blank]
3
IN
WITNESS WHEREOF, the parties have executed this Amendment No. 1 as of the date
first above written.
| COMPANY: | ||
| MTM TECHNOLOGIES, INC. | ||
| |
|
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| By: | ||
|
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: | ||
|
Name: Xxxxx Xxxxx |
||
| Title: General Counsel | ||
| PEQUOT OFFSHORE PRIVATE EQUITY PARTNERS III, L.P. | ||
| |
|
|
| By: |
Pequot
Capital Management, Inc.,
as
Investment Manager
|
|
| By: | ||
|
Name: Xxxxx Xxxxx |
||
| Title: General Counsel | ||
Signature
Page to Amendment No. 2 to Registration Rights Agreement
| CONSTELLATION STOCKHOLDERS: | ||
| CONSTELLATION VENTURE CAPITAL II, L.P. | ||
| |
|
|
| By: |
Constellation Ventures Management II,
LLC,
Its
General Partner
|
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| By: | ||
|
Name: |
||
| Title: | ||
| CONSTELLATION VENTURE CAPITAL OFFSHORE II, L.P. | ||
| |
|
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| By: |
Constellation Ventures Management II,
LLC,
Its
General Partner
|
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| By: | ||
|
Name: |
||
| Title: | ||
| THE BSC EMPLOYEE FUND VI, L.P. | ||
| |
|
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| By: |
Constellation Ventures Management II,
LLC,
Its
General Partner
|
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| By: | ||
|
Name: |
||
| Title: | ||
| CVC II PARTNERS, LLC | ||
| |
|
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| By: |
The
Bear Xxxxxxx Companies Inc.,
Its
Managing Member
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| By: | ||
|
Name: |
||
| Title: | ||
Signature
Page to Amendment No. 2 to Registration Rights Agreement
