EXHIBIT 4.4
AMENDMENT NO. 1
TO
REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT (the "AMENDMENT") is
entered into effective as of December 12, 2005 (the "EFFECTIVE DATE"), by and
among RAPTOR NETWORKS TECHNOLOGY, INC., a Colorado corporation (the "COMPANY"),
and DMK Investments, LLC, Transglobal Investments, LLC, and Uptrend Investment,
Inc. (collectively, the "INVESTORS"). The Company and the Investors may
collectively be referred to herein as the "PARTIES."
R E C I T A L S
A. The Company and the Investors are party to that certain Registration
Rights Agreement, dated June 1, 2004 (the "AGREEMENT").
B. The Parties entered into a letter agreement, dated August 8, 2005, and
accepted and agreed to by the Investors on September 20, 2005, whereby the
Parties agreed in principle to certain amendments to the Agreement, a copy of
which letter agreement is attached hereto as EXHIBIT A (the "LETTER AGREEMENT").
C. The Parties desire to formalize the amendments set forth in the Letter
Agreement and amend the Agreement in the manner specifically set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. CAPITALIZED TERMS. Capitalized terms used but not defined herein shall
have the meanings for such terms that are set forth in the Agreement.
2. CERTAIN AMENDMENTS.
(a) AMENDMENT TO SECTION 1. Section 1 of the Agreement is hereby
amended as follows:
(i) Section 1(a) defining "Effective Date" is hereby deleted in
its entirety.
(ii) Section 1(b) defining "Filing Deadline" is hereby deleted in
its entirety.
(iii) Section 1(f) defining "Registration Deadline" is hereby
deleted in its entirety.
(iv) Section 1(g) defining "Registration Period" is hereby
amended and restated in its entirety to read as follows:
"(g) "REGISTRATION PERIOD" has the meaning set forth in paragraph
2(a) below;"
(v) Section 1(f) defining "Registration Statement" is hereby
amended and restated in its entirety to read as follows:
"(h) "REGISTRATION STATEMENT" has the meaning set forth in
paragraph 2(a) below; and"
(vi) A Section 1(i) shall be added to the Agreement as follows:
"(i) "COMMISSION" shall mean the Securities and Exchange
Commission."
(b) AMENDMENT TO SECTION 2. Section 2 of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(a) REGISTRATION RIGHTS. Not later than 60 calendar days
following the final closing of the Company's private placement
pursuant to the Company's Private Placement Memorandum dated March 15,
2005, as amended, the Company shall file a registration statement (the
"REGISTRATION STATEMENT") covering the public sale of Registrable
Securities, and the Company will cause such Registrable Securities to
be registered under the Securities Act of 1933, as amended (the
"Securities Act") and continue to keep the Registration Statement
effective until the earlier to occur of (i) the date on which all of
the Registrable Securities have been publicly sold pursuant to either
the Registration Statement or Rule 144 of the Securities Act ("Rule
144"), (ii) the date on which all of the Registrable Securities
remaining to be sold under the Registration Statement (in the
reasonable opinion of counsel to the holder of the Registrable
Securities) may be immediately sold to the public under Rule 144(k) or
any successor provision, or (iii) a period of two years from the date
the Registration Statement is filed with the Commission (collectively,
the "REGISTRATION PERIOD"). For every day that the Company is late in
filing the Registration Statement beyond 60 days, the Company will
issue to the Holders, on a pro rata basis, additional shares in whole
share increments equal to 1% of shares purchased pursuant to the
Securities Purchase Agreement."
"(b) REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this
Agreement, the Company will keep each Holder advised in writing as to
the initiation of each registration, qualification and compliance and
as to the completion thereof. At its expense the Company will:
"(i) EFFECTIVENESS. Prepare and file with the Commission a
registration statement with respect to such securities and use its
commercially reasonable best efforts to cause such registration
statement to become and remain effective for the Registration Period;
and"
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"(ii) AMENDMENT OR SUPPLEMENT TO REGISTRATION STATEMENT.
Prepare and file as soon as reasonable with the Commission and
promptly notify each Holder of the filing of such amendment or
supplement to the registration statement or prospectus as may be
necessary to correct any statements or omissions if, at the time when
a prospectus relating to such securities is required to be delivered
under the Securities Act, the Company determines that any event shall
have occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading or if the Company determines that an amendment to
the registration statement or supplement to the prospectus is
advisable before further sales of Registrable Securities should be
made; provided that if the Board of Directors of the Company
determines that amending the registration statement or supplementing
the prospectus might be detrimental to the Company, then,
notwithstanding this Section 2(c)(vi), the Company may defer such
amendment or supplement for up to 120 days (an "ALLOWED DELAY"),
provided that the Company shall not use such right of deferral with
respect to any registration statement for more than an aggregate of
120 days in any 12-month period."
(c) AMENDMENT TO SECTION 4. Section 4(k) of the Agreement is hereby
deleted in its entirety.
(d) AMENDMENT TO SECTION 8(C). The notice address for the Company set
forth in Section 8(c) of the Agreement is hereby amended and restated as
follows:
IF TO THE COMPANY: Raptor Networks Technology, Inc.
0000 X. Xxxx Xxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Attn: Xxx xxx Xxxxx
WITH A COPY TO: Xxxxx & Xxxxxx, LLP
000 Xxxxx Xxxx., 00xx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
3. WAIVER OF PENALTIES. The Investors hereby agree to waive any and all
payments and penalties they might otherwise have been entitled to pursuant to
the Registration Default provisions of Section 2(c) of the original terms of the
Agreement. All future penalties, if any, resulting from the Company's failure to
timely file a Registration Statement pursuant to the amendment set forth in
SECTION 2(b) of this Amendment shall be calculated in accordance with SECTION
2(b) of this Amendment.
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4. REGISTRATION OF OTHER SECURITIES. Notwithstanding anything to the
contrary in the Agreement, the Investors hereby (i) agree that the Company may
register in the Registration Statement any other of the Company's securities
that the Company may, in the Company's sole discretion, deem necessary or
desirable, including, without limitation, the registration for resale any of the
Company's securities issued, or to be issued, pursuant to the Company's past,
ongoing or any future private placement or similar offering of securities and
(ii) expressly waive any restrictions regarding the Company's filing of
registration statements pursuant to Section 2(f) of the original terms of the
Agreement (which Section 2(f) is deleted as a result of the amended and restated
language to Section 2 of the Agreement set forth in SECTION 2(b) of this
Amendment).
5. NO OTHER MODIFICATIONS INTENDED. Except as specifically set forth
herein, no other modification of the Agreement is intended or to be implied and
the terms of the Agreement, except as modified herein, shall remain in full
force and effect.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have executed this Amendment to
Registration Rights Agreement effective as of the date first above written.
COMPANY: RAPTOR NETWORKS TECHNOLOGY, INC.,
a Colorado corporation
By: /s/ Xxx xxx Xxxxx
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Xxx xxx Xxxxx, Chief Financial Officer
INVESTORS: DMK Investments, LLC
By: /s/ Xxxxxx Xxxx
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Its: /s/ Manager
Transglobal Investments, LLC
By: /s/ Xxxxxx Xx
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Its: Managing Member
Uptrend Investment, Inc.
By: /s/ Xxxxxxxxx Xxx Xxxx
--------------------------------------
Its: Xxxxxxxxx Xxx Chin (Pres.)
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