AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit
10.6
AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT
This
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the “Agreement”)
is
entered into as of August 4, 2006, by and among CaminoSoft Corp., a California
corporation (the “Company”),
and
the undersigned investors (individually, a “Purchaser”
and
collectively the “Purchasers”).
RECITALS
WHEREAS,
pursuant to a Stock Purchase Agreement dated as of February 21, 2006 (the
“Stock Purchase
Agreement”),
certain of the Purchasers acquired from the Company an aggregate of 697,674
shares (the “Purchaser
Shares”)
of the
Company’s Common Stock, no par value per share (the “Common
Stock”),
and
the Purchasers acquired from the Company Warrants to purchase up to an aggregate
of 150,000 shares of Common Stock (the “Warrant
Shares”
and,
together with the Purchaser Shares, collectively, the “Shares”);
WHEREAS,
the Company and the Purchasers entered into a Registration Rights Agreement,
dated February 21, 2006 (the “Prior
Agreement”),
pursuant to which the Company granted the Purchasers certain registration rights
in respect of the Shares;
WHEREAS,
the Company and the Purchasers desire to amend and restate the Prior Agreement
as set forth herein;
WHEREAS,
pursuant to Section 7(f) of the Prior Agreement, the Prior Agreement may be
amended, modified or supplemented by a written instrument signed by the Company
and the Holders (as defined in the Prior Agreement) of the then outstanding
Registrable Securities (as defined in the Prior Agreement).
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
herein hereby agree as follows:
Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
“Commission”
means
the Securities and Exchange Commission or any other federal agency at the time
administering the Securities Act.
“Effectiveness
Date”
means,
with respect to any Registration Statement required to be filed pursuant to
Section 2 hereof, a date no later than one hundred eighty (180) days following
the date hereof.
“Effectiveness
Period”
has
the
meaning set forth in Section 2(a).
“Holder”
or
“Holders”
means
the Purchaser or any of its affiliates or transferees to the extent any of
them
hold Registrable Securities.
“Indemnified
Party”
has
the
meaning set forth in Section 5(c).
“Indemnifying
Party”
has
the
meaning set forth in Section 5(c).
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means
the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement,
and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
“Registrable
Securities”
shall
mean (i) the Shares, and any shares of capital stock of the Company into which
the Shares are convertible or exercisable and (ii) any Common Stock issued
or
issuable at any time or from time to time in respect of the Shares upon a stock
split, stock dividend, recapitalization, exchange or other similar event
involving the Company.
“Registration
Statement”
means
each registration statement required to be filed hereunder, including the
Prospectus therein, amendments and supplements to such registration statement
or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Securities
Act”
means
the Securities Act of 1933, as amended, and any successor statute.
“Trading
Market”
means
any of the NASD Over The Counter Bulletin Board, NASDAQ SmallCap Market, the
NASDAQ National Market, the American Stock Exchange or the New York Stock
Exchange
Registration.
The
Company shall prepare and file with the Commission a Registration Statement
covering the Registrable Securities for a selling stockholder resale offering
to
be made on a continuous basis pursuant to Rule 415. The Company shall cause
the
Registration Statement to become effective and remain effective as provided
herein. The Company shall use its reasonable commercial efforts to cause each
Registration Statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof, but in any event no later than
the Effectiveness Date. The Company shall use its reasonable commercial efforts
to keep each Registration Statement continuously effective under the Securities
Act until the date which is the earlier date of when (i) all Registrable
Securities covered by such Registration Statement have been sold or (ii) all
Registrable Securities covered by such Registration Statement may be sold
immediately without registration under the Securities Act and without volume
restrictions pursuant to Rule 144(k), as determined by the counsel to the
Company pursuant to a written opinion letter to such effect, addressed and
acceptable to the Company’s transfer agent and the affected Holders (each, an
“Effectiveness
Period”).
If:
(i)
any Registration Statement is not filed on or prior to the applicable
Effectiveness Date for such Registration Statement; (ii) a Registration
Statement filed hereunder is not declared effective by the Commission by the
applicable Effectiveness Date; (iii) after a Registration Statement is filed
with and declared effective by the Commission, a Discontinuation Event (as
hereafter defined) shall occur and be continuing (but not including a
Discontinuation Event described in clause (i) or (ii) of the definition of
“Discontinuation Event” below to the extent that the shares of Common Stock
registered pursuant to such Registration Statement subject of such
Discontinuation Event shall remain freely tradeable by the Holder despite the
occurrence of such Discontinuation Event), or such Registration Statement ceases
to be effective (by suspension or otherwise) as to all Registrable Securities
to
which it is required to relate at any time prior to the expiration of the
Effectiveness Period applicable to such Registration Statement (without being
succeeded immediately by an additional Registration Statement filed and declared
effective), for a period of time which shall exceed 30 days in the aggregate
per
year or more than 20 consecutive calendar days (defined as a period of 365
days
commencing on the date such Registration Statement is declared effective);
or
(iv) the Common Stock is not listed or quoted, or is suspended from trading
on
any Trading Market for a period of three (3) consecutive Trading Days (provided
the Company shall not have been able to cure such trading suspension within
30
days of the notice thereof or list the Common Stock on another Trading Market);
(any such failure or breach being referred to as an “Event,”
and
for purposes of clause (i) or (ii) the date on which such Event occurs, or
for
purposes of clause (iii) the date which such 30 day or 20 consecutive day period
(as the case may be) is exceeded, or for purposes of clause (iv) the date on
which such three (3) Trading Day period is exceeded, being referred to as an
“Event
Date”),
then
the Company shall promptly take such action as is necessary to correct such
Event.
Within
three business days of the Effectiveness Date, the Company shall cause its
counsel to issue a blanket opinion to the Company’s transfer agent stating that
the shares are subject to an effective registration statement and can be
reissued free of restrictive legend upon notice of a sale by the Holder and
confirmation by the Holder that it has complied with the prospectus delivery
requirements, provided that the Company has not advised the transfer agent
orally or in writing that the opinion has been withdrawn. Copies of the blanket
opinion required by this Section 2(b) shall be delivered to the Holder within
the time frame set forth above.
The
Company may require each Holder of Registrable Securities as to which any
registration is being effected to furnish to the Company, within ten calendar
days after written request therefor has been made by the Company, such
information regarding the distribution of such Holder’s Registrable Securities
as is required by law to be disclosed in the Registration Statement (the
“Requisite
Information”).
(i)
The
Company shall file prospectus supplements pursuant to Rule 424 under the
Securities Act (or any successor provision thereto) to supplement the
Prospectus, or, if necessary, amend the applicable Registration Statement,
to
include in the Prospectus the Requisite Information as to each Holder (and
the
Registrable Securities held by such Holder) that provides notice to the Company
of the Requisite Information. The Company shall provide each Holder a copy
(or,
to any Holder, such larger number of copies as such Holder shall request) of
such Prospectus as so supplemented, or included in an amended Registration
Statement, containing the Requisite Information within three business days
of
filing such Prospectus with the Commission in order to permit such Holder to
comply with the prospectus delivery requirements of the Securities Act in a
timely manner with respect to any proposed disposition of such Holder’s
Registrable Securities.
(ii)
No
Holder
shall be entitled to use the Prospectus if such Holder shall have failed to
furnish the information required by this Section 2(c), and such information
with
respect to such Holder shall have been included in the Prospectus, unless the
Company shall have failed timely to fulfill its obligations under this Section.
If any information furnished to the Company by a Holder for inclusion in a
Registration Statement or the Prospectus becomes materially misleading, such
Holder agrees (i) to furnish promptly to the Company all information required
to
be disclosed in such Registration Statement in order to make the information
previously furnished to the Company not materially misleading and (ii) to stop
selling or offering for sale Registrable Securities pursuant to the Registration
Statement until such Holder’s receipt of the copies of a supplemented or amended
Prospectus correcting such disclosure.
The
Company shall have no obligation to keep a Prospectus usable with respect to
a
particular Holder or to give notice that a Prospectus is not usable by such
Holder to the extent such Prospectus is not usable by such Holder because
current Requisite Information with respect to such Holder is not included
therein because such Holder has not provided such information to the Company
in
accordance with this Section 2(c).
Registration
Procedures.
Whenever the Company is required by the provisions hereof to effect the
registration of any Registrable Securities under the Securities Act, the Company
will, as expeditiously as possible:
prepare
and file with the Commission a Registration Statement with respect to such
Registrable Securities, respond as promptly as possible to any comments received
from the Commission, and use its best efforts to cause such Registration
Statement to become and remain effective for the Effectiveness Period with
respect thereto, and promptly provide to the Holders copies of all filings
and
Commission letters of comment relating thereto;
prepare
and file with the Commission such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as may
be
necessary to comply with the provisions of the Securities Act with respect
to
the disposition of all Registrable Securities covered by such Registration
Statement and to keep such Registration Statement effective until the expiration
of the Effectiveness Period applicable to such Registration
Statement;
furnish
to each Holder such number of copies of the Registration Statement and the
Prospectus included therein (including each preliminary Prospectus) as such
Holder may reasonably request to facilitate the public sale or disposition
of
the Registrable Securities covered by such Registration Statement;
use
its
commercially reasonable efforts to register or qualify the Holders’ Registrable
Securities covered by such Registration Statement under the securities or “blue
sky” laws of such jurisdictions within the United States as the Holders may
reasonably request, provided, however, that the Company shall not for any such
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent
to
general service of process in any such jurisdiction;
list
the
Registrable Securities covered by such Registration Statement with any
securities exchange on which the Common Stock of the Company is then listed;
immediately
notify the Holders at any time when a Prospectus relating thereto is required
to
be delivered under the Securities Act, of the happening of any event of which
the Company has knowledge as a result of which the Prospectus contained in
such
Registration Statement, as then in effect, includes an untrue statement of
a
material fact or omits to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading in light of the
circumstances then existing; and
make
available for inspection by the Holders and any attorney, accountant or other
agent retained by the Holders, all publicly available, non-confidential
financial and other records, pertinent corporate documents and properties of
the
Company, and cause the Company’s officers, directors and employees to supply all
publicly available, non-confidential information reasonably requested by the
attorney, accountant or agent of the Holders.
Registration
Expenses.
All expenses relating to the Company’s compliance with Sections 2 and 3 hereof,
including, without limitation, all registration, listing, qualification and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
reasonable counsel fees) incurred in connection with complying with state
securities or “blue sky” laws, fees of the NASD, transfer taxes, fees of
transfer agents and registrars, fees of, and disbursements incurred by, one
counsel for the Holders are called “Registration
Expenses”.
All selling commissions applicable to the sale of Registrable Securities,
including any fees and disbursements of any special counsel to the Holders
beyond those included in Registration Expenses, are called
“Selling
Expenses.”
The Company shall be responsible for and pay all Registration
Expenses.
Indemnification.
In
the
event of a registration of any Registrable Securities under the Securities
Act
pursuant to this Agreement, the Company will indemnify and hold harmless each
Holder, and its officers, directors and each other person, if any, who controls
such Holder within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such Holder, or
such
persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement under which such
Registrable Securities were registered under the Securities Act pursuant to
this
Agreement, any preliminary Prospectus or final Prospectus contained therein,
or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and
will reimburse such Holder, and each such person for any reasonable legal or
other expenses incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however,
that
the Company will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made
in
conformity with information furnished by or on behalf of the Purchaser or any
such person in writing specifically for use in any such document.
In
the
event of a registration of the Registrable Securities under the Securities
Act
pursuant to this Agreement, each Purchaser will indemnify and hold harmless
the
Company, and its officers, directors and each other person, if any, who controls
the Company within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company or such
persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact which was furnished in writing by such Purchaser to the
Company expressly for use in (and such information is contained in) the
Registration Statement under which such Registrable Securities were registered
under the Securities Act pursuant to this Agreement, any preliminary Prospectus
or final Prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, and will reimburse the Company and each
such
person for any reasonable legal or other expenses incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided,
however,
that
such Purchaser will be liable in any such case if and only to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
so
made in conformity with information furnished in writing to the Company by
or on
behalf of such Purchaser specifically for use in any such document.
Notwithstanding the provisions of this paragraph, no Purchaser shall be required
to indemnify any person or entity in excess of the amount of the aggregate
net
proceeds received by such Purchaser in respect of Registrable Securities in
connection with any such registration under the Securities Act.
Promptly
after receipt by a party entitled to claim indemnification hereunder (an
“Indemnified
Party”)
of
notice of the commencement of any action, such Indemnified Party shall, if
a
claim for indemnification in respect thereof is to be made against a party
hereto obligated to indemnify such Indemnified Party (an “Indemnifying
Party”),
notify the Indemnifying Party in writing thereof, but the omission so to notify
the Indemnifying Party shall not relieve it from any liability which it may
have
to such Indemnified Party other than under this Section 5(c) and shall only
relieve it from any liability which it may have to such Indemnified Party under
this Section 5(c) if and to the extent the Indemnifying Party is prejudiced
by
such omission. In case any such action shall be brought against any Indemnified
Party and it shall notify the Indemnifying Party of the commencement thereof,
the Indemnifying Party shall be entitled to participate in and, to the extent
it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such Indemnified Party, and, after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume and undertake
the
defense thereof, the Indemnifying Party shall not be liable to such Indemnified
Party under this Section 5(c) for any legal expenses subsequently incurred
by
such Indemnified Party in connection with the defense thereof; if the
Indemnified Party retains its own counsel, then the Indemnified Party shall
pay
all fees, costs and expenses of such counsel; provided,
however,
that,
if the defendants in any such action include both the Indemnified Party and
the
Indemnifying Party and the Indemnified Party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the Indemnifying Party or if the interests
of the Indemnified Party reasonably may be deemed to conflict with the interests
of the Indemnifying Party, the Indemnified Party shall have the right to select
one separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the reasonable expenses and
fees
of such separate counsel and other expenses related to such participation to
be
reimbursed by the Indemnifying Party as incurred.
In
order
to provide for just and equitable contribution in the event of joint liability
under the Securities Act in any case in which either (i) a Purchaser, or any
officer, director or controlling person of such Purchaser, makes a claim for
indemnification pursuant to this Section 5 but it is judicially determined
(by
the entry of a final judgment or decree by a court of competent jurisdiction
and
the expiration of time to appeal or the denial of the last right of appeal)
that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 5 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of a Purchaser
or such officer, director or controlling person of such Purchaser in
circumstances for which indemnification is provided under this Section 5; then,
and in each such case, the Company and such Purchaser will contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportion so that such Purchaser
is
responsible only for the portion represented by the percentage that the public
offering price of its securities offered by the Registration Statement bears
to
the public offering price of all securities offered by such Registration
Statement; provided,
however,
that,
in any such case, (A) such Purchaser will not be required to contribute any
amount in excess of the public offering price of all such securities offered
by
it pursuant to such Registration Statement; and (B) no person or entity guilty
of fraudulent misrepresentation will be entitled to contribution from any person
or entity who was not guilty of such fraudulent misrepresentation.
Assignment
of Registration Rights.
The rights under this Agreement shall be automatically assignable by the
Purchasers to any transferee of all or any portion of the Registrable Securities
if (i) the Purchaser agrees in writing with the transferee or assignee to assign
such rights, and a copy of such agreement is furnished to the Company within
a
reasonable time after such assignment, (ii) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (a)
the
name and address of such transferee or assignee, and (b) the securities with
respect to which such registration rights are being transferred or assigned,
(iii) following such transfer or assignment, the further disposition of such
securities by the transferee or assignee is restricted under the Securities
Act
and applicable state securities laws, (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence, the
transferee or assignee agrees in writing with the Company to be bound by all
of
the provisions contained herein, and (v) such transferee shall be an “accredited
investor” as that term defined in Rule 501 of Regulation D promulgated under the
Securities Act.
Miscellaneous.
Remedies.
In the
event of a breach by the Company or by a Holder, of any of their respective
obligations under this Agreement, each Holder or the Company, as the case may
be, in addition to being entitled to exercise all rights granted by law and
under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement.
Entire
Agreement; Delays or Omissions.
This
Agreement, the Stock Purchase Agreement and the Warrants constitute the full
and
entire understanding and agreement between the parties with regard to the
subject hereof. The failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
Compliance.
Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to any Registration Statement.
Discontinued
Disposition.
Each
Holder agrees by its acquisition of such Registrable Securities that, upon
receipt of a notice from the Company of the occurrence of a Discontinuation
Event (as defined below), such Holder will forthwith discontinue disposition
of
such Registrable Securities under the applicable Registration Statement until
such Holder’s receipt of the copies of the supplemented Prospectus and/or
amended Registration Statement or until it is advised in writing (the
“Advice”)
by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph. For purposes of this Agreement, a
“Discontinuation
Event”
shall
mean (i) when the Commission notifies the Company whether there will be a
“review” of such Registration Statement and whenever the Commission comments in
writing on such Registration Statement (the Company shall provide true and
complete copies thereof and all written responses thereto to each of the
Holders); (ii) any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to such Registration
Statement or Prospectus or for additional information; (iii) the issuance by
the
Commission of any stop order suspending the effectiveness of such Registration
Statement covering any or all of the Registrable Securities or the initiation
of
any Proceedings for that purpose; (iv) the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; and/or (v) the occurrence of any event or passage of time that makes
the financial statements included in such Registration Statement ineligible
for
inclusion therein or any statement made in such Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein
by
reference untrue in any material respect or that requires any revisions to
such
Registration Statement, Prospectus or other documents so that, in the case
of
such Registration Statement or Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
Piggy-Back
Registrations.
If at
any time during any Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities required to be covered
during such Effectiveness Period and the Company shall determine to prepare
and
file with the Commission a registration statement relating to an offering for
its own account or the account of others under the Securities Act of any of
its
equity securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans, then the Company shall send to each Holder written
notice of such determination and, if within fifteen (15) days after receipt
of
such notice, any such Holder shall so request in writing, the Company shall
include in such registration statement all or any part of such Registrable
Securities such Holder requests to be registered, to the extent the Company
may
do so without violating registration rights of others which exist as of the
date
of this Agreement, subject to customary underwriter cutbacks applicable to
all
holders of registration rights and subject to obtaining any required consent
of
any selling stockholder(s) to such inclusion under such registration
statement.
Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and the Holders of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates generally to the
rights of all Holders and that does not directly or indirectly affect the rights
of specific Holders in a manner different from other Holders may be given by
Holders of at least a majority of the Registrable Securities; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding
sentence.
Notices.
Any
notice or request hereunder may be given to the Company or the Purchaser at
the
respective addresses set forth below or as may hereafter be specified in a
notice designated as a change of address under this Section 7(g). Any notice
or
request hereunder shall be given by registered or certified mail, return receipt
requested, hand delivery, overnight mail, Federal Express or other national
overnight next day carrier (collectively, “Courier”)
or
telecopy (confirmed by mail). Notices and requests shall be, in the case of
those by hand delivery, deemed to have been given when delivered to any party
to
whom it is addressed, in the case of those by mail or overnight mail, deemed
to
have been given three (3) business days after the date when deposited in the
mail or with the overnight mail carrier, in the case of a Courier, the next
business day following timely delivery of the package with the Courier, and,
in
the case of a telecopy, when confirmed. The address for such notices and
communications shall be as follows:
If
to
the Company: CaminoSoft
Corp.
000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention:
Chief
Executive Officer
Facsimile:
(000)
000-0000
with
a copy to:
Xxxx
& Xxxxx, P.C.
0000
Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx
X.
Xxxxxxxx, Esq.
Facsimile: (000)
000-0000
If
to
a Purchaser: c/o
RENN
Capital Group, Inc.
0000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxxxxx
Xxxxxxxxx
Facsimile:
(000)
000-0000
with
a copy to:
Xxxxxx
and Xxxxx, LLP
0000
Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx,
Xxxxx 00000
Attention: Xxxxx
X.
Xxxx, Esq.
Facsimile:
(000)
000-0000
If
to
any other Person who is
then
the registered Holder: To
the
address of such Holder as it appears in the stock transfer books of the
Company
or
such
other address as may be designated in writing hereafter in accordance with
this
Section 7(g) by such Person.
Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties and shall inure to the benefit of
each
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of the holders of the majority of the Registrable
Securities then outstanding (assuming full exercise of the Warrants).
Execution
and Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
Governing
Law, Jurisdiction and Venue.
This
Agreement shall be enforced, governed by and construed in accordance with the
laws of the State of Texas applicable to agreements made and to be performed
entirely within such state, without regard to the principles of conflict of
laws. The parties hereto hereby submit to the exclusive jurisdiction of the
United States Federal Courts located Dallas, Texas with respect to any dispute
arising under this Agreement, the agreements entered into in connection herewith
or the transactions contemplated hereby or thereby. All parties irrevocably
waive the defense of an inconvenient forum to the maintenance of such suit
or
proceeding. The parties further agree that service of process upon a party
mailed by first class mail shall be deemed in every respect effective service
of
process upon the party in any such suit or proceeding. Nothing herein shall
affect any party’s right to serve process in any other manner permitted by law.
The parties agree that a final non-appealable judgment in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner. The party which does not
prevail in any dispute arising under this Agreement shall be responsible for
all
fees and expenses, including attorneys’ fees, incurred by the prevailing party
in connection with such dispute.
Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
[Remainder
of Page Intentionally Blank]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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COMPANY:
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| |
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| By: | ||
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Xxxxxxx
Xxxxxxx
Chief
Executive Officer
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PURCHASERS:
Renaissance Capital Growth & Income Fund
III, Inc.
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| |
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| By: | ||
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Xxxxxxx
Xxxxxxxxx
President
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| Renaissance US Growth Investment Trust PLC | ||
| |
By: XXXX
Capital Group, Inc.
Its: Investment
Manager
|
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| By: | ||
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Xxxxxxx
Xxxxxxxxx
President
|
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| BFS US Special Opportunities Trust PLC | ||
| |
By: XXXX Capital Group, Inc. Its: Investment
Adviser
|
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| By: | ||
|
Xxxxxxx
Xxxxxxxxx
President
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