AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMONG
CORPORATE
OFFICE PROPERTIES, L.P.,
XXXXX
XXXXXX,
XXXXXXXXX
XXXX,
GEF
CAPITAL COMPANY HOLDINGS, LLC
THE
XXXXXX FAMILY, LLC,
XXXX
X. XXXXXX REVOCABLE TRUST U/A DATED MARCH 9, 2004,
XXXXXXX
X. XXXXXXXXX,
XXXXXXXX
XXXXXX,
THUNDERCLAP
HOLDINGS, LLC,
VEDANTA
OPPORTUNITIES FUND, L.P.,
ALPHA
TECHNOLOGY LTD.,
AND
THE
KEYW CORPORATION
DATED
AS OF MAY 29, 2009
AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT (this “Agreement” or the
“Registration Rights
Agreement”) is entered into as of May 29, 2009, by and among each of the
following parties: (i) The KEYW Corporation, a Maryland corporation (the “Company”), (ii)
Corporate Office Properties, L.P., (iii) Xxxxx Xxxxxx, (iv) Xxxxxxxxx Xxxx, (v)
GEF Capital Company Holdings, LLC, (vi) The Xxxxxx Family, LLC, (vii) Xxxxxxx X.
Xxxxxxxxx, (viii) Xxxxxxxx Xxxxxx (ix) Thunderclap Holdings, LLC, (collectively,
excluding the Company, the “Existing Investors”),
and (x) Vedanta Opportunities Fund, L.P., (xi) Alpha Technology Ltd, and (xii)
the Xxxx X. Xxxxxx Revocable Trust u/a dated March 9, 2004 (the “New Investors”, and
together with the Existing Investors, the “Investors”, or
individually, an “Investor”).
WHEREAS, the Company and the Existing Investors are party
to a Registration Rights Agreement dated as of August 22, 2008 (the “Original Agreement”)
which was entered into in connection with the private placement of an aggregate
of 5,897,250 shares of Common Stock and warrants to purchase up to an aggregate
of 2,948,625 shares of Common Stock from the Company (the “2008 Warrants”);
WHEREAS, as of May 11, 2009, the
Company conducted a private placement to certain of its Existing Investors, the
Xxxx X. Xxxxxx Revocable Trust u/a dated March 9, 2004, and certain other
individuals and entities (the “May 2009 Private Placement
Investors”) in which the May 2009 Private Placement Investors acquired an
aggregate of 3,581,360 shares of Common Stock and warrants to purchase up to an
aggregate of 1,790,680 shares of Common Stock from the Company (the “May 2009 Warrants”)
pursuant to subscription agreements (such purchase, the “May 2009 Private
Placement”);
WHEREAS, as of May 29, 2009, the
Company conducted an additional private placement to Vedanta Opportunities Fund,
L.P., an affiliate of Vedanta Opportunities Fund, L.P., and certain other
investors in which they acquired an aggregate of 1,558,458 shares of Common
Stock and warrants to purchase up to an aggregate of 779,229 shares of Common
Stock (together with the 2008 Warrants and the May 2009 Warrants, the “Warrants”) from the
Company pursuant to subscription agreements (such purchase, together with the
May 2009 Private Placement, the “Investment”);
WHEREAS, the Company, the Existing Investors and the New
Investors desire to amend and restate the Original Agreement to include the New Investors in connection with the
Investment and to provide the Investors with certain rights with respect to the
registration of the Common Stock and shares underlying the Warrants;
and
WHEREAS, except as defined elsewhere
in this Agreement, capitalized terms used in this Agreement shall have the
meanings ascribed to them in Article 2
hereof.
NOW, THEREFORE, for and in
consideration of the foregoing and of the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
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1.
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REGISTRATION
RIGHTS
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1.1.
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Demand
Registration Rights
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1.1.1.
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Request
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At any time after September 1, 2011,
Holders owning at least a majority of the
then outstanding Registrable Securities may request, and at any time after the
six-month anniversary of an IPO Holders
owning at least twenty percent (20%) of the then outstanding Registrable
Securities may request, registration for sale under the Act of all or part of
the Registrable Securities then held by them, and upon such request the Company
will promptly take the actions specified in Section
1.1.2.
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1.1.2.
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Demand
Procedures
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Within ten (10) Business Days after
receipt by the Company of a written registration request pursuant to Section 1.1.1 (which
request shall specify the number of shares of Common Stock proposed to be
registered and sold and the manner in which such sale is proposed to be
effected), the Company shall promptly give written notice to all other Holders
of the proposed demand registration, and such other Holders shall have the right
to join in the proposed registration and sale, upon written request to the
Company (which request shall specify the number of shares proposed to be
registered and sold) within five (5) Business Days after receipt of such notice
from the Company. The Company shall thereafter, as expeditiously as
practicable, use its commercially reasonable efforts to (i) file with the SEC
under the Act a registration statement on the appropriate form concerning all
Registrable Securities specified in the demand request and all Registrable
Securities with respect to which the Company has received the written request
from the other Holders and (ii) cause the registration statement to be declared
effective. At the request of participating Holders holding a majority
of the Registrable Securities being registered, the Company use its commercially
reasonable efforts to cause each offering pursuant to Section 1.1.1 to be
managed, on a firm commitment basis, by a recognized regional or national
underwriter selected by the Company and approved by such participating Holders,
such approval not to be unreasonably withheld, conditioned or
delayed. All Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in customary
form. The Company shall not be obligated to effect more than three
registrations requested by the Holders under Section 1.1.1; provided, however, that any
such request shall be deemed satisfied only when a registration statement
covering more than seventy-five percent (75%) of the Registrable Securities
specified in notices received as aforesaid, for sale in accordance with the
method of disposition specified by the Holders, has become
effective.
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1.1.3.
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Delay
by Company
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The Company shall not be required to
effect a demand registration under the Act pursuant to Section 1.1.1 above
if (i) the Company receives a request for registration under Section 1.1.1 less
than sixty (60) days preceding the anticipated effective date of a proposed
underwritten public offering of securities of the Company approved by the
Company’s Board of Directors prior to the Company’s receipt of the request and
in such event the Company shall not be required to effect any such requested
registration until sixty (60) days after the effective date of such proposed
underwritten public offering, (ii) within sixty (60) days prior to any such
request for registration, a registration of securities of the Company has been
effected in which the Holders had the right to participate pursuant to this
Section 1.1 or
Section 1.3
hereof or (iii) the Board of Directors of the Company reasonably determines in
good faith that effecting such a demand registration at such time would have a
material adverse effect upon a proposed sale of all (or substantially all) of
the assets of the Company, or a merger, reorganization, recapitalization, or
similar transaction materially affecting the capital structure or equity
ownership of the Company, or would otherwise be seriously detrimental to the
Company because the Company was then in the process of raising capital in the
public or private markets or would require premature disclosure of material
information that the Company has a bona fide business purpose for preserving as
confidential; provided, however, that the
Company may only delay a demand registration pursuant to this Section 1.1.3 for a
period not exceeding ninety (90) days (or until such earlier time as such
transaction is consummated or no longer proposed) and may only defer any such
filing pursuant to this Section 1.1.3 once
per calendar year. The Company shall promptly notify in writing the
Holders requesting registration of any decision not to effect any such request
for registration pursuant to this Section 1.1.3, which notice
shall set forth in reasonable detail the reason for such decision and shall
include an undertaking by the Company promptly to notify such Holders as soon as
a demand registration may be effected. Any demand registration delayed or deferred under this
Section 1.1.3 shall not be considered one of the permitted registrations under
Section 1.1.2 unless and until it has become effective.
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1.1.4.
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Reduction
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If a demand registration is an
underwritten registration and the managing underwriters advise the Company and
the Holders participating in the demand registration in writing that in their
opinion the number of shares of Common Stock requested to be included in such
registration exceeds the number which can be sold in such offering without adversely affecting the marketability
of the offering, then the amount of such shares that may be included in
such registration shall first be allocated pro rata among all of the Holders exercising
demand rights under Section 1.1 in
proportion to the number of shares of Registrable Securities owned by them and
then to the Company or any other party seeking to participate in the
offering.
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1.1.5.
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Withdrawal
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Holders participating in any demand
registration pursuant to this Section 1.1 may
withdraw at any time before a registration statement is declared effective, and
the Company may withdraw such registration statement if no Registrable
Securities are then proposed to be included (and if withdrawn by the Company or
any Holder, the Holders shall not be deemed to have requested a demand
registration for purposes of Section 1.1.1
hereof). If the Company withdraws a registration statement under this
Section 1.1.5
in respect of a registration for which the Company would otherwise be required
to pay expenses under Section 1.6.2 hereof,
the Holders that shall have withdrawn shall reimburse the Company for all
expenses of such registration in proportion to the number of shares each such
withdrawing Holder shall have requested to be registered unless the Holders
withdrew from the requested registration pursuant to the discovery of material
information adverse to the Company or the
registration is delayed or deferred under Section 1.1.3.
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1.2.
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Piggyback
Registration Rights
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1.2.1.
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Request
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If at any time or times after the
date of this Agreement the Company proposes to file a registration statement
covering any of its securities under the Act (whether to be sold by it or by one
or more selling stockholders), other than pursuant to an offering registered on
Form S-8 or Form S-4, or successor forms relating to board-approved employee
stock plans and business combinations, the Company shall, not less than thirty
(30) days prior to the proposed filing date of the registration form, give
written notice of the proposed registration to all Holders specifying in
reasonable detail the proposed transaction to be covered by the registration
statement, and at the written request of any Holder delivered to the Company
within thirty (30) days after giving such notice, shall include in such
registration and offering, and in any underwriting of such offering, all
Registrable Securities as may have been designated in the Holder’s
request. The Company shall have no obligation to include shares of
Common Stock owned by any Holder in a registration statement pursuant to this
Section 1.2,
unless and until such Holder (a) in connection with any underwritten offering,
agrees to enter into an underwriting agreement, a custody agreement and power of
attorney and any other customary documents required in an underwritten offering
all in customary form and containing customary provisions and (b) shall have
furnished the Company with all information and statements about or pertaining to
such Holder in such reasonable detail and on such timely basis as is reasonably
deemed by the Company to be legally required with respect to the preparation of
the registration statement.
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1.2.2.
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Reduction
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If a registration in which any Holder
has the right or is otherwise permitted to participate pursuant to this Section 1.2 is an
underwritten registration, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability
of the offering, the Company
shall include in such registration (a) first, the shares proposed to be sold by
the Company, (b) second, the shares proposed to be sold by Holders exercising
rights under Section
1.2.1, allocated pro rata among such Holders in proportion to the number
of Registrable Securities owned by them, and (c) third, by any other
stockholders proposing to sell shares of Common Stock pursuant to such
registration.
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1.3.
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Registration
on Form S-3
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Subject to the limitations set forth in
Section 1.1.3,
if at any time the Company is eligible to use Form S-3 (or any successor form)
for secondary sales any Investor may request (by written notice to the Company
stating the number of Registrable Securities proposed to be sold and the
intended method of disposition) that the Company file a registration statement
on Form S-3 (or any successor form) for a public sale of all or any portion of
the Registrable Securities beneficially owned by it, provided that the
reasonably anticipated aggregate price to the public of such Registrable
Securities shall be at least $1 million. At the written request of
the Investor requesting such registration, such registration shall be for a
delayed or continuous offering under Rule 415 under the Act. Upon
receiving such request, the Company shall use its commercially reasonable
efforts to promptly file a registration statement on Form S-3 (or any successor
form) to register under the Act for public sale in accordance with the method of
disposition specified in such request, the number of shares of Registrable
Securities specified in such request and shall otherwise carry out the actions
specified in Sections
1.1.2 and 1.4. There
shall be no limitation on the number of registrations on Form S-3 that may be
requested and obtained under this Section
1.3.
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1.4.
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Registration
Procedures
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Whenever any Holder has requested
that any Registrable Securities be
registered pursuant to Section 1.1, 1.2 or 1.3 hereof, the
Company shall, as expeditiously as reasonably possible, use its commercially
reasonable efforts to:
(a) prepare
and file with the SEC a registration statement with respect to such shares and
use its commercially reasonable efforts to cause such registration statement to
become effective as soon as reasonably practicable thereafter (provided that
before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish counsel for such Holder with
copies of all such documents proposed to be filed);
(b) prepare
and file with the SEC such amendments and supplements to such registration
statement and prospectus used in connection therewith as may be necessary to
keep such registration statement effective for a period of not less than ninety
(90) days (two (2) years in the case of a registration pursuant to Section 1.3 hereof),
or until such earlier time as Holder has completed the distribution described in
such registration statement, whichever occurs first;
(c) furnish
to such Holder such number of copies of such registration statement, each
amendment and supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus), and such other documents as
such Holder may reasonably request;
(d) register
or qualify such shares under such other securities or blue sky laws of such
jurisdictions as such Holder reasonably requests (and to maintain such
registrations and qualifications effective for the applicable period of time set
forth in Section
1.4(b) hereof, and to do any and all other acts and things which may be
necessary or advisable to enable such Holder to consummate the disposition in
such jurisdictions of such shares (provided that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not be required but for this subsection (d), (ii) subject itself to
taxation in any such jurisdiction, or (iii) file any general consent to service
of process in any such jurisdiction); provided that,
notwithstanding anything to the contrary in this Agreement with respect to the
bearing of expenses, if any such jurisdiction shall require that expenses
incurred in connection with the qualification of such shares in that
jurisdiction be borne in part or full by such Holder, then such Holder shall pay
such expenses to the extent required by such jurisdiction;
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(e) notify
such Holder, at any time when a prospectus relating thereto is required to be
delivered under the Act within the period that the Company is required to keep
the registration statement effective, of the happening of any event as a result
of which the prospectus included in any such registration statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and promptly prepare, file and furnish to the
Holder a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such shares, such prospectus will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or, in light of the circumstances then existing, necessary to
make the statements therein not misleading;
(f) cause
all such securities to be listed on
securities exchanges, if any, on which similar securities issued by the Company
are then listed (or if not then listed, on such exchanges as the Company shall
determine to be in its best interests);
(g) provide
a transfer agent and registrar for all such securities not later than the effective date of
such registration statement;
(h) make
available for inspection by any underwriter participating in any distribution
pursuant to such registration statement, and by any attorney, accountant or
other agent retained by such Holder or by any such underwriter, all financial
and other records, pertinent corporate documents, and properties (other than
confidential intellectual property) of the Company; and
(i) in
connection with an underwritten offering pursuant to a registration statement
filed pursuant to Section 1.1, enter
into an underwriting agreement in customary form and containing reasonable
customary provisions, including provisions for indemnification of underwriters
and contribution, if so requested by any underwriter.
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1.5.
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Holdback
Agreement
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(a) Notwithstanding
anything in this Agreement to the contrary, if after any registration statement
to which the rights hereunder apply becomes effective (and prior to completion
of any sales thereunder), the Board of Directors determines in good faith that
the failure of the Company to (i) suspend sales of stock under the registration
statement or (ii) amend or supplement the registration statement, would have a
material adverse effect on the Company, the Company shall so notify each Holder
participating in such registration and each Holder shall suspend any further
sales under such registration statement until the Company advises the Holder
that the registration statement has been amended or that conditions no longer
exist which would require such suspension; provided that the
Company may impose any such suspension for no more than thirty (30) days and no
more than two (2) times during any twelve (12) month period.
(b) In
the event that the Company effects a registration of any securities under the
Act for its IPO or a subsequent public offering of securities, each Holder of the Company’s outstanding Equity Securities
agrees not to effect any sale, transfer, disposition or distribution, including
any sale pursuant to Rule 144 under the Act, of any Equity Securities (except as
part of such offering) during the 180-day period in the case of the IPO, and the 90-day period in
subsequent public offerings, commencing with the effective date of the
registration statement for the offering; provided that all
holders of five percent (5%) or more of the Company’s outstanding Equity
Securities, and officers and directors of the Company, to the extent that they
hold Equity Securities and have been requested by the managing underwriter to do
so, enter into similar agreements providing for similar restrictions on
sales.
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1.6.
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Registration
Expenses
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1.6.1.
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Holder
Expenses
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If, pursuant to Section 1.1, 1.2 or 1.3 hereof,
Registrable Securities are included in a registration statement, then the Holder
thereof shall pay all transfer taxes, if any, relating to the sale of its
shares, and any underwriting discounts or commissions or the equivalent thereof
applicable to the sale of its shares.
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1.6.2.
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Company
Expenses
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Except for the fees and expenses
specified in Section
1.6.1, the Company shall pay all expenses incident to the registration of
shares by the Company and any Holders pursuant to Sections 1.1, 1.2 or 1.3 hereof, and to
the Company’s performance of or compliance with this Agreement, including,
without limitation, all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws, underwriting discounts, fees and
expenses (other than any Holder’s portion of any underwriting discounts or
commissions or the equivalent thereof), printing expenses, messenger and
delivery expenses, and reasonable fees and expenses of counsel for the Company
and all independent certified public accountants and other persons retained by
the Company.
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1.6.3.
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Indemnity
and Contribution
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(a) In
the event that any shares owned by a Holder are proposed to be offered by means
of a registration statement pursuant to Section 1.1, 1.2 or 1.3, to the extent
permitted by law, the Company shall indemnify and hold harmless such Holder, any
underwriter participating in such offering, each officer, partner, manager and
director of such person, each person, if any, who controls or may control such
Holder or underwriter within the meaning of the Act and each representative of
any Holder serving on the Board of Directors of the Company (such Holder or
underwriter, its officers, partners, managers directors and representatives, and
any such other persons being hereinafter referred to individually as an “Indemnified Person”
and collectively as “Indemnified Persons”)
from and against all demands, claims, actions or causes of action, assessments,
losses, damages, liabilities, reasonable costs and expenses, including, without
limitation, interest, penalties, and reasonable attorneys’ fees and
disbursements, asserted against, resulting to, imposed upon or incurred by such
Indemnified Person, directly or indirectly (hereinafter referred to in this
Section 1.6.3
in the singular as a “claim” and in the
plural as “claims”), based upon,
arising out of or resulting from any breach of representation or warranty made
by the Company in the underwriting agreement relating to such offering or any
untrue statement of a material fact contained in the registration statement or
any omission to state therein a material fact necessary to make the statements
made therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such claim is based upon, arises out of or results
from information furnished to the Company in writing by such Indemnified Person
for use in connection with the registration statement.
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(b) Promptly
after receiving notice of any claim in respect of which an Indemnified Person
may seek indemnification under this Section 1.6.3, such
Indemnified Person shall submit written notice thereof to the Company (sometimes
being hereinafter referred to as an “Indemnifying
Person”). The omission of the Indemnified Person so to notify
the Indemnifying Person of any such claim shall not relieve the Indemnifying
Person from any liability it may have hereunder except to the extent that (a)
such liability was caused or increased by such omission, or (b) the ability of
the Indemnifying Person to reduce such liability was materially adversely
affected by such omission. In addition, the omission of the
Indemnified Person so to notify the Indemnifying Person of any such claim shall
not relieve the Indemnifying Person from any liability it may have otherwise
than hereunder. The Indemnifying Person shall have the right to
undertake, by counsel or representatives of its own choosing, the defense,
compromise or settlement (without admitting liability of the Indemnified Person)
of any such claim asserted, such defense, compromise or settlement to be
undertaken at the expense of the Indemnifying Person, and the Indemnified Person
shall have the right to engage separate counsel, at its own expense, whom
counsel for the Indemnifying Person shall keep informed and consult with in a
reasonable manner. In the event the Indemnifying Person shall elect
not to undertake such defense by its own representatives, the Indemnifying
Person shall give prompt written notice of such election to the Indemnified
Person, and the Indemnified Person shall undertake the defense, compromise or
settlement (without admitting liability of the Indemnified Person) thereof on
behalf of and for the account of the Indemnifying Person by counsel or other
representatives designated by the Indemnified Person. Notwithstanding
the foregoing, no Indemnifying Person shall be obligated hereunder with respect
to amounts paid in settlement of any claim if such settlement is effected
without the consent of such Indemnifying Person (such consent not to be
unreasonably withheld or
delayed).
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1.7.
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Grant
and Transfer of Registration Rights
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Except for registration rights granted
by the Company which are subordinate to the rights of the Holders hereunder, the
Company shall not grant any registration rights to any other person or entity
without the prior written consent of Holders of a majority of the Registrable
Securities held by all Holders. Investors shall have the right to
transfer or assign the rights contained in this Agreement (i) to any limited
partner or affiliate of a Investor in connection with the transfer of any
Registrable Securities or (ii) to any third party transferee acquiring at least
five percent 5%) of the Registrable Securities; provided that (a)
such transfer is permitted by the terms of any shareholder agreement then in
effect, (b) the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned, (c) such transferee or assignee agrees in writing to be bound by
and subject to the terms and conditions of this Agreement and (d) following the consummation of the IPO, such assignment shall be
effective only if immediately following such transfer the further disposition of
such securities by the transferee or assignee is restricted under the
Act.
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1.8.
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Information
from Holder
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It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be reasonably required to effect the registration of
such Holder’s Registrable Securities.
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1.9.
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Rule
144 Requirements
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After the date of the IPO, the Company
shall use its commercially reasonable efforts to make publicly available, and
available to the Holders, such information as is necessary to enable the Holders
to make sales of Registrable Securities pursuant to Rule 144 of the Act, to the
extent applicable. The Company shall furnish to any Holder, upon
request, a written statement executed by the Company as to the steps it has
taken to comply with the current public information requirements of Rule
144.
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1.10.
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Changes
in Equity Securities
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If, and as often as, there is any
change in the Common Stock by way of a stock split, stock dividend, combination
or reclassification, of through a merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions of this Agreement so that the rights and privileges granted
hereby shall continue with respect to the Common Stock as so
changed.
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2.
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DEFINITIONS
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The capitalized terms contained in this
Agreement shall have the following meanings unless otherwise specifically
defined:
“Act” shall mean the
Securities Act of 1933, as amended.
“Business Day” shall
mean Monday through Friday and shall exclude any federal or bank holidays
observed in New York City.
“Common Stock” shall
mean up to thirty five million (35,000,000) shares of the Company’s capital
stock issued as common stock of the Company, par value of one tenth of one cent
($0.001) per share.
“Equity Securities”
shall mean the Common Stock and any warrants or other rights to subscribe for or
to purchase, or any options for the purchase of, Common Stock, any stock or
security convertible into or exchangeable for Common Stock or any other stock,
security or interest in the Company whether or not convertible into or
exchangeable for Common Stock.
“Holders” shall mean
the Investors and any other person or entity that is a valid transferee of the
rights granted hereunder pursuant to Section
1.7.
“IPO” shall mean the
initial public offering of the Company’s Equity Securities registered under the
Act.
“Registrable
Securities” shall mean (i) any shares of Common Stock held by the Holders
or hereafter acquired by the Holders (including, without limitation, shares of Common Stock issued upon
exercise of the Warrants issued to the
Investors) and (ii) any equity
securities issued as a distribution with respect to or in exchange for conversion of or exercise of or in replacement
for any of the shares referred to in clause (i).
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3.
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MISCELLANEOUS
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3.1.
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Entire
Agreement; Amendment
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This Agreement constitutes the entire
agreement among the parties hereto with respect to the matters provided for
herein, and it supersedes all prior oral or written agreements, commitments or
understandings with respect to the matters provided for herein. This Agreement
may not be amended without the written consent of the Company and the Holders
of a majority of
the Registrable Securities held by all Holders.
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3.2.
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Waiver
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No delay or failure on the part of
any party hereto in exercising any right, power or privilege under this
Agreement or under any other instruments given in connection with or pursuant to
this Agreement shall impair any such right, power or privilege or be construed
as a waiver of any default or any acquiescence therein. No single or
partial exercise of any such right, power or privilege shall preclude the
further exercise of such right, power or privilege, or the exercise of any other
right, power or privilege. No waiver shall be valid against any party
hereto unless made in writing and signed by the party against whom enforcement
of such waiver is sought and then only to the extent expressly specified
therein.
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3.3.
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Termination
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This
Agreement shall forthwith become wholly void and of no effect upon the earlier
to occur of the following: (i) as to any Holder, at such time after the closing date of the IPO as all of such
Holder’s Equity Securities are then eligible for sale in a single transaction
under Rule 144, promulgated under the Act, or (ii) seven years from the closing
date of the IPO.
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3.4.
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No
Third Party Beneficiaries
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Except for indemnification rights
provided in Section
1.6.3 or to the extent that the rights hereunder are assigned in
accordance with Section 1.7, it is
the explicit intention of the parties hereto that no person or entity other than
the parties hereto is or shall be entitled to bring any action to enforce any
provision of this Agreement against any of the parties hereto, and the
covenants, undertakings and agreements set forth in this Agreement shall be
solely for the benefit of, and shall be enforceable only by, the parties hereto
or their respective successors, heirs, executors, administrators, legal
representatives and permitted assigns.
|
|
3.5.
|
Binding
Effect
|
This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors, heirs, executors, administrators, legal representatives and
permitted assigns.
10
|
|
3.6.
|
Governing
Law
|
This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the laws of the State of
Maryland (excluding the choice of law rules thereof).
|
|
3.7.
|
Notices
|
All notices, demands, requests, or
other communications which may be or are required to be given, served, or sent
by any party to any other party pursuant to this Agreement shall be in writing
and shall be hand-delivered, sent by overnight courier service or mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
|
(i)
|
If
to the Company:
|
000 Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxx
000
Xxxxxxxxx Xxxxxxxx, XX
00000
Facsimile:
000-000-0000
Attention: Xxxxxxx
X. Xxxxxxxxx, CEO
with a
copy (which shall not constitute notice) to:
Xxxxx
& Xxxxxxx L.L.P.
000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
A. Xxxxx Xxxxxxx
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|
(ii)
|
If
to any Investor, such Investor’s address as appearing on the records of
the Company.
|
Each
party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or
sent. Each notice, demand, request, or communication which shall be
hand-delivered or mailed in the manner described above, shall be deemed
sufficiently given, served, sent, received or delivered for all purposes at such
time as it is delivered to the addressee (with the return receipt or the
delivery receipt being deemed conclusive, but not exclusive, evidence of such
delivery) or at such time as delivery is refused by the addressee upon
presentation.
|
|
3.8.
|
Execution
in Counterparts
|
To facilitate execution, this
Agreement may be executed in as many counterparts as may be required; and it
shall not be necessary that the signatures of, or on behalf of, each party, or
that the signatures of all persons required to bind any party, appear on each
counterpart; but it shall be sufficient that the signature of, or on behalf of,
each party, or that the signatures of the persons required to bind any party,
appear on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary
in making proof of this Agreement to produce or account for more than a number
of counterparts containing the respective signatures of, or on behalf of, all of
the parties hereto.
11
[remainder
of page intentionally left blank]
12
IN
WITNESS WHEREOF, the undersigned have duly executed this Registration Rights
Agreement, or have caused this Registration Rights Agreement to be duly executed
on their behalf, as of the day and year first set forth above.
|
THE
COMPANY:
|
|
|
THE
KEYW CORPORATION
|
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx
|
|
Name:
Xxxxxxx X. Xxxxxxxxx
|
|
|
Title:
Chief Executive
Officer
|
|
|
EXISTING
INVESTORS:
|
|
CORPORATE
OFFICE PROPERTIES, L.P.
|
|||
| By: | Corporate Office Properties Trust, its general partner | ||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
||
|
Title:
|
President
and Chief Executive Officer
|
||
|
GEF
CAPITAL COMPANY HOLDINGS, LLC
|
|||
|
By:
|
/s/
H. Xxxxxxx Xxxxxxx
|
||
|
Name:
|
|||
|
Title:
|
|||
|
THE
XXXXXX FAMILY, LLC
|
|||
|
By:
|
/s/
Xxxxx Xxxxx Xxxxxx
|
||
|
Name:
|
Xxxxx
Xxxxx Xxxxxx
|
||
|
Title:
|
Director
|
||
|
THUNDERCLAP
HOLDINGS, LLC
|
|||
|
By:
|
/s/
H. Xxxxxxx Xxxxxxx
|
||
|
Name:
|
|
||
|
Title:
|
|
||
|
/s/
Xxxxx Xxxxxx
|
|||
|
Xxxxx
Xxxxxx
|
|||
|
/s/
Xxxxxxxxx Xxxx
|
|||
|
Xxxxxxxxx
Xxxx
|
|||
|
/s/
Xxxxxxx X. Xxxxxxxxx
|
|||
|
Xxxxxxx
X. Xxxxxxxxx
|
|||
|
/s/
Xxxxxxxx Xxxxxx
|
|||
|
Xxxxxxxx
Xxxxxx
|
|||
[signatures
continue on the following page]
|
NEW
INVESTORS:
|
||
|
VEDANTA
OPPORTUNITIES FUND, L.P.
|
||
|
By: Vedanta
Associates, LP, its general partner
|
||
|
By: Vedanta
Partners, LLC, its general partner
|
||
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx Xxxxxx
|
|
|
Title:
|
Managing Partner
|
|
|
ALPHA
TECHNOLOGY LTD.
|
||
|
By:
|
|
|
|
By:
|
|
|
|
By:
|
/s/ Xxxxxxxx Xxxxxxxxxxx
|
|
|
Name:
|
Xxxxxxxx Xxxxxxxxxxx
|
|
|
Title:
|
Director
|
|
|
XXXX
X. XXXXXX REVOCABLE TRUST U/A
DATED
MARCH 9, 2004
|
||
|
/s/ Xxxx X. Xxxxxx
|
||
|
Xxxx
Xxxxxx
|
||
JOINDER
AGREEMENT
The
undersigned hereby join the Amended and Restated Stockholders’ Agreement, dated
as of May 29, 2009 (the “Stockholders’
Agreement”), by and among The KEYW Corporation, a Maryland corporation
(the “Company”), and
certain stockholders of the Company which Stockholders’ Agreement has been
assigned to and assumed by The KEYW Holding Corporation, a Maryland corporation
(“HoldCo”), in
connection with a reorganization effected on December 29, 2009. The
undersigned acknowledge and agree that the undersigned shall be deemed
Stockholders under the Stockholders’ Agreement, subject to the terms and
conditions of the Stockholders’ Agreement.
The
undersigned hereby join the Amended and Restated Registration Rights Agreement,
dated as of May 29, 2009 (the “Registration Rights
Agreement”), by and among the Company and certain investors of the
Company which Registration Rights Agreement has been assigned to and assumed by
HoldCo in connection with a reorganization effected on December 29,
2009. The undersigned acknowledge and agree that the undersigned
shall be deemed Investors under the Registration Rights Agreement, subject to
the terms and conditions of the Registration Rights Agreement.
The
parties hereto hereby acknowledge and agree that this Joinder Agreement shall
not be effective unless and until shares of HoldCo common stock are issued to
the undersigned and/or their affiliates.
|
STOCKHOLDERS/INVESTORS:
|
|
/s/ Xxxxx X. Wilshere
|
|
Xxxxx
X. Wilshere
|
|
/s/ D. Xxxxxxx Xxxxx
|
|
D.
Xxxxxxx Xxxxx
|
ACCEPTED
AND AGREED:
THE
KEYW HOLDING CORPORATION
|
By:
|
/s/ Xxxx X. Xxxxxxx
|
|
|
Name:
Xxxx X. Xxxxxxx
|
||
|
Title:
Chief Financial Officer
|
||
|
Date:
|
February 22,
2010
|
|
JOINDER
AGREEMENT
The
undersigned hereby joins the Amended and Restated Stockholders’ Agreement, dated
as of May 29, 2009 (the “Stockholders’
Agreement”), by and among The KEYW Corporation, a Maryland corporation
(the “Company”), and
certain stockholders of the Company which Stockholders’ Agreement has been
assigned to and assumed by The KEYW Holding Corporation, a Maryland corporation
(“HoldCo”), in
connection with a reorganization effected on December 29, 2009. The
undersigned acknowledges and agrees that the undersigned shall be deemed a
Stockholder under the Stockholders’ Agreement, subject to the terms and
conditions of the Stockholders’ Agreement.
The
undersigned hereby joins the Amended and Restated Registration Rights Agreement,
dated as of May 29, 2009 (the “Registration Rights
Agreement”), by and among the Company and certain investors of the
Company which Registration Rights Agreement has been assigned to and assumed by
HoldCo in connection with a reorganization effected on December 29,
2009. The undersigned acknowledges and agrees that the undersigned
shall be deemed an Investor under the Registration Rights Agreement, subject to
the terms and conditions of the Registration Rights Agreement.
|
STOCKHOLDER/INVESTOR:
|
|
/s/ Xxxxx Xxxx
|
|
Xxxxx
Xxxx
|
ACCEPTED
AND AGREED:
THE
KEYW HOLDING CORPORATION
|
By:
|
/s/ Xxxxxxx X.
Xxxxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxxxx
|
||
|
Title: Chief
Executive Officer
|
||
|
Date:
|
March 15,
2010
|
|
