Eyetel Imaging, Inc.
Eyetel
Imaging, Inc.
0000
Xxxxxxxx Xxxx
Xxxxxxxx,
XX 00000
September
6, 2007
RL
Capital Partners, LP
Attn.:
Xxxxxx X. Xxxxx
c/o
Maxim
Group
000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
Dear
Xx.
Xxxxx:
This
letter is to confirm certain additional agreements between Eyetel Imaging,
Inc.
(the “Company”)
and RL
Capital Partners, LP (“RLCP”)
in
connection with the note and warrant financing (the “Bridge
Financing”)
pursuant to the terms and conditions of that certain Note and Warrant Purchase
Agreement among the Company and the Purchasers party thereto, dated December
28,
2006, as amended by Amendment No. 1, dated February 23, 2007 and Amendment
No.
2, dated April 20, 2007 (the “Agreement”),
and
the Promissory Note (the “Note”)
and
Warrant to Purchase Preferred Stock (the “Warrant”)
issued
to RLCP by the Company each dated as of May 2, 2007. Capitalized terms used
herein without definition shall have the meanings ascribed to them in the XXX
(as defined below). The undersigned parties hereby agree as
follows:
The
shares issuable to RLCP (the “Shares”)
upon
conversion of the Note and/or exercise of the Warrant (if common stock), or
the
common stock issuable upon conversion of the Shares, shall be deemed
“Registrable Securities” for the purposes of Section 3 of the Investor Rights
Agreement, dated January 14, 2004, by and among Company and the Investors listed
on Exhibit A thereto, as amended on
February 8, 2006, May 1, 2007 and September 5, 2007 and as further amended
from
time
to time (the “XXX”),
which
shall entitle RLCP to “piggy back” registration rights in accordance with the
terms of the XXX. Notwithstanding the foregoing, the Shares shall cease to
be
Registrable Securities when (i) a registration statement with respect to
the sale of such securities shall have become effective under the Securities
Act
and such securities shall have been disposed of in accordance with such
registration statement; (ii) such securities shall have been distributed to
the public pursuant to Rule 144; or (iii) such securities may be sold by
RLCP and all of its Affiliates without registration under the Securities Act
pursuant to Rule 144(k) under the Securities Act or (iv) such securities
may be sold by RLCP and all of its Affiliates without registration under the
Securities Act pursuant to Rule 144 under the Securities Act and RLCP and all
of
its Affiliates collectively own less than 1% of the Company’s outstanding Common
Stock. RLCP shall be subject to the restrictions on transfer set forth in
connection with a firm commitment underwritten offering set forth in Section
5.3
of the XXX as if a party thereto as a Holder. In the event the shares issued
to
RLCP are shares of Series B Preferred Stock of the Company, then shall become
party as an Investor to the XXX and that certain Amended and Restated
Stockholders Agreement, dated January 14, 2004, by and among Company and the
Investors listed on Exhibit A thereto, as amended from time to
time.
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RL
Capital Partners, LP
Page
2
|
September
6,
2007
|
The
Company agrees that no amendments will be made to the XXX which would have
an
adverse impact on RLCP’s registration rights thereunder without the consent of
RLCP, unless such amendment, modification or waiver affects the rights
associated with the Shares in the same manner as such amendment, modification,
or waiver affects the rights associated with all other shares of the same series
and class as the Shares granted to RLCP. By acceptance of the Note and Warrant,
RLCP shall be deemed to be a party to the XXX solely for the purpose of the
above-mentioned registration rights.
EYETEL
IMAGING, INC.
By:
/s/
Xxxxx X.
Xxxx
Name:
Xxxxx X. Xxxx
Title:
Chief financial Officer
Acknowledged
and agreed:
RL
CAPITAL PARTNERS, LP
By:
/s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member
