FIRST AMENDMENT TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

FIRST AMENDMENT TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

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Exhibit 4.12

FIRST AMENDMENT TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

This FIRST AMENDMENT (this “Amendment”) is entered into as of this 9 day of November 2009, between XStream Systems, Inc., a Delaware corporation (the “Company”), and the Persons named on Schedule I to the Amended and Restated Registration Rights Agreement dated as of August 27, 2009 (the “Registration Rights Agreement”) as Investors (individually an “Investor” and collectively the “Investors”).

WHEREAS, the Company and the Investors desire to amend various sections of the Registration Rights Agreement in order to accommodate the Company’s anticipated initial public offering of its debt and equity securities, including restricting the Investor’s ability to transfer the Registrable Securities during the time periods set forth below, as hereinafter provided; and

WHEREAS, the holders of a majority of the Registrable Securities have approved and consented to this Amendment as indicated by their signatures affixed hereto.

NOW, THEREFORE, in consideration of the foregoing, the parties hereto hereby agree as follows:

1. Amendments.

(a) Section 1(a). Section 1(a) of the Registration Rights Agreement shall be deleted in its entirety and replaced with the following new Section 1(a):

“(a) Requests for Registration. At any time following the earlier of (i) the fifth (5^th)anniversary of the date hereof and (ii) six (6) months after the Company has completed its initial public offering of debt or equity securities of the Company pursuant to a registration statement declared effective under the Securities Act (the “Company’s IPO”), holders holding at least thirty percent (30%) of the Registrable Securities (collectively, the “Thirty Percent Holders”) may request registration under the Securities Act of all or a portion of their Registrable Securities (provided that the aggregate offering price of the Registrable Securities to be registered is at least $30,000,000) on Form S-1 or any similar long-form registration (“Long-Form Registration”) or, if available, holders holding at least fifty percent (50%) of the Registrable Securities (collectively, the “Majority Holders”) may, subject to Section 1(b), request registration under the Securities Act of all or a portion of their Registrable Securities on Form S-3 or any similar short-form registration (“Short-Form Registration”). All registrations requested pursuant to this Section 1(a) and Section 1(b) below are collectively referred to herein as “Demand Registrations”. The Thirty Percent Holders shall be entitled to request two (2) Long-Form Registrations. Demand Registrations will be underwritten registrations if requested by the holders, provided that the Company is able to obtain an underwriter for such Demand Registration.”

(b) Section 1(f). Section 1(f) of the Registration Rights Agreement shall be deleted in its entirety.

(c) Section 2(b). The first sentence of Section 2(b) of the Registration Rights Agreement shall be deleted in its entirety and replaced with the following:

“If a Piggyback Registration is a primary registration on behalf of the Company, and the managing underwriters or board of directors of the Company determine that 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 such offering, then the Company will include in such registration (a) first, the securities the Company proposes to sell, (b) second, the Registrable Securities requested to be included in such registration, pro rata among the holders of such securities on the basis of the number of securities so requested to be included therein owned by each such holder and (c) third, other securities requested to be included in such registration, pro rata among the holders of such securities on the basis of the number of securities so requested to be included therein owned by each such holder.”

(d) Section 3(a). Section 3(a) of the Registration Rights Agreement shall be deleted in its entirety and replaced with the following new Section 3(a):

“(a) General. In connection with the Company’s IPO, the Investors hereby acknowledge and understand that the Investors shall be subject to the holdback provisions set forth in Section 2.2 of the Shareholders Agreement regarding the restrictions on transfer of the Registrable Securities.”

(e) Section 4. Section 4 of the Registration Rights Agreement shall be amended by appending the following as a new subsection (b) immediately following subsection (a) thereof:

“(b) Each holder of the Registrable Securities to be included in the registration statement shall furnish to the Company a completed questionnaire in the form provided by the Company (a “Selling Holder Questionnaire”), within the time period specified in the Company’s notice. The Company shall not be required to include the Registrable Securities of a holder in a registration statement for any holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire.”

(f) Section 10. Section 10 of the Registration Rights Agreement shall be amended as follows:

(i) The existing definition of “Registrable Securities” shall be amended by (i) inserting the phrase “as of the date hereof” at the end of the first sentence thereof and following the phrase “held by such Person” in the last sentence thereof and (ii) deleting the “(k)” in the reference to “Rule 144(k).”

(ii) The following new defined term and its meaning shall be inserted in appropriate alphabetical order:

“Selling Holder Questionnaire” has the meaning specified in Section 4(b).”

2. Reference to and Effect on Registration Rights Agreement; Reaffirmation.

(a) Upon the effectiveness of this Amendment, each reference in the Registration Rights Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” “hereby” or words of like import shall mean and be a reference to the Registration Rights Agreement as amended hereby, and each reference to the Registration Rights Agreement, the Original Purchase Agreement and/or the Series D Purchase Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Registration Rights Agreement shall mean and be a reference to the Registration Rights Agreement as amended hereby.

(b) Except as specifically amended hereby, the Registration Rights Agreement shall remain in full force and effect and is hereby ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not constitute a waiver of any provision contained in the Registration Rights Agreement, except as specifically set forth herein.

3. Governing Law. The internal law of the State of Florida will govern all questions concerning the construction, validity and interpretation of this Amendment, without regard to the choice of law provisions of such state or any other state.

4. Recitals. The recitals set forth above are true, accurate, and incorporated herein by reference.

5. Miscellaneous.

(a) Capitalized terms used herein without definition shall have the respective definitions assigned to those terms in the Registration Rights Agreement, as amended by this Amendment.

(b) Headings of Sections are inserted for convenience of reference only and shall not be deemed a part of or to affect the meaning or interpretation of this Amendment.

(c) This Amendment may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement, it being understood that the parties need not sign the same counterpart.

(d) Each of the parties to this Amendment has had the benefit of counsel in connection with its review and negotiation of this Amendment. Consequently, the parties confirm that this Amendment shall not be construed on the basis of any presumption or rule requiring construction or interpretation against the party drafting an agreement or instrument or causing any agreement or instrument to be drafted.

[Signature Page Follows]

IN WITNESS WHEREOF, the Company and the Securityholders have caused this Amendment to be executed as of the day and year first above written.

[OMNIBUS SIGNATURE PAGES TO WRITTEN CONSENT OF A

MAJORITY OF THE SECURITYHOLDERS OF

XSTREAM SYSTEMS, INC.]


Preferred Amendments		APPENDIX A


				Issued and		Issued and			Issued and			Issued and
		Issued and		Outstanding		Outstanding			Outstanding			Outstanding
		Outstanding		Series A		Series B			Series C			Series D			Approval
	Name	Common		Preferred⁽¹⁾		Preferred⁽¹⁾			Preferred⁽¹⁾			Preferred⁽¹⁾			Rec’d

	2/22/83
45.	Xxxx X. Xxxxxxxxx, Trustee, The Survivor’s Trust of The Xxxxxxxxx Revocable Trust Dated 2/22/83		42,664		0		8,406			0			0		Y
46.	Xxxx Xxxxxx		0		13,158		16,666			0			0		—
47.	Xxxx X. Xxxxxxxx		21,332		0		0			0			0		—
48.	Xxxx X Xxxxxx		0		0		5,000			0			0		Y
49.	Xxxxxx Xxxxxxx		100		0		0			0			0		—
50.	Xxxxxx Xxxxxxxxxx		0		13,158		33,332			15,000			0		Y
51.	Xxxxxx Xxxxxx		0		32,895		58,332			0			0		Y
52.	JTW Partners⁽²⁾		0		43,869		33,340			25,006			33,340		Y
53.	Xxxxxx X. Xxxxxxx		0		0		16,812			0			0		—
54.	Xxxxx X. O’Xxxxx TTEE		6,579		0		0			0			0		—
55.	Xxxxxxxxx X. Xxxxxxxxx, Trustee of the KCHL Revocable Trust Dated 8/24/95		10,666		0		0			0			0		—
56.	Xxxxxxx X. Xxxxxx And Xxxxx Xxxx Xxxxxx Living Trust		5,000		0		8,406			0			0		—
57.	Xxxxxx Xxxxxxxx		100		0		0			0			0		—
58.	Xxxxx Xxxxxx		0		0		12,179			0			0		—
59.	Xxxxxxx Family Limited Partnership		0		0		100,386			24,999			0		Y
60.	Xxxxxx Family Investments LLC⁽²⁾		0		0		(2	)		(2	)		(2	)	Y
61.	Xxxxxx Ireland		57,648		0		33,625			0			0		Y
62.	Xxxx X. Xxxxxx		0		0		0			0			16,750		Y
63.	Xxxxxxx X. Xxxxxxxxx Xx.		0		0		8,333			0			0		—
64.	Xxxxxxx Xxxxxxxx		0		13,342		0			0			0		—
65.	Xxxxxxx X. Xxxxx Revocable Trust		0		65,790		83,333			36,000			0		Y
66.	Xxxxxxx Family Partners		0		13,158		0			0			0		Y
67.	Xxxx X. Xxxxxxxx		11,750		0		0			0			0		Y
68.	Xxxx X. Xxxxxxxx		1,340		0		0			0			0		—
69.	Xxxxx Xxxxxxx		0		13,158		0			0			0		—
70.	Xxxxxxx Xxxxx		0		13,158		33,333			0			0		Y
71.	Xxxxxxx Xxxxxx		10,666		0		0			0			0		—
72.	Xxxxxxx X. Xxxxx, GM, Xxxxxxx Xxxxxx Investment LLC		31,998		0		0			0			0		Y
73.	Xxxxxx X. Xxxxxxxxxxx 2006 Personal Trust dated February 2, 2006		6,579		0		50,437			0			0		—
74.	Xxxxxx X. Xxxxxxxx & Xxxxxx X. Xxxxxxxx, JTWROS		38,577		0		0			0			0		—
75.	Xxxxxx Xxxxxxx		0		32,895		74,999			30,000			0		Y
76.	Xxxxxx X. Xxxxxxxxx		0		52,632		0			0			0		Y
77.	Xxxxxx Xxxxxxx		0		6,579		33,387			8,333			8,333		Y
78.	Xxxxxx Xxxxxx		153		0		0			0			0		—
79.	Xxxxxx X. Xxxx		42,664		0		16,812			0			0		Y
80.	Xxxxxx Xxxxx		0		13,158		5,000			0			0		—
81.	Xxxxxx X. Xxxxxxx		6,579		0		16,812			0			0		Y
82.	Xxxxx Xxxxxxxxx		11,950		0		0			0			0		—
83.	Xxxxxx X. Xxxxxx		6,579		0		0			0			0		—
84.	Xxxxxx X. Xxxxx III, Revocable Trust		6,579		26,867		58,849			0			0		Y
85.	Xxxxx and Xxxxxx Xxxx		0		6,624		0			0			0		—
86.	SEI Private Trust Co. Custodian Xxxxxx Xxxxxxxxxxx XXX R/O		0		13,498		0			0			0		—


Preferred Amendments		APPENDIX A


				Issued and		Issued and		Issued and		Issued and
		Issued and		Outstanding		Outstanding		Outstanding		Outstanding
		Outstanding		Series A		Series B		Series C		Series D		Approval
	Name	Common		Preferred⁽¹⁾		Preferred⁽¹⁾		Preferred⁽¹⁾		Preferred⁽¹⁾		Rec’d

87.	Xxxxxx Xxxxxx		180		0		0		0		0	—
88.	Simon Irish		0		0		0		0		100,000	Y
89.	State University of New Jersey, Rutgers		73,500		0		0		0		0	—
90.	Xxxxxx X. Xxxxxxxxxx		0		0		8,360		0		0	—
91.	Summit Investors of Vero, Ltd.		0		65,790		0		0		0	—
92.	Xxxxx X. Xxxxxxx		10,666		0		0		0		0	—
93.	Xxxxx Xxxxxxxx		10,666		0		0		0		0	—
94.	The Mayo Family Revocable Trust dated July 13, 2000		26,316		0		46,782		8,333		0	—
95.	The Xxxxxxx Xxxx & Xxxx Xxxx Revocable Trust		0		6,579		8,333		0		0	—
96.	Xxxxxx X. Xxxx		79,654		13,450		100,519		0		0	Y
97.	Xxx Xxx		800		0		0		0		0	—
98.	Xxx Xxxxx		21,332		0		0		0		0	—
99.	Triantafillos Parlapanides		0		0		8,407		0		0	Y
100.	Xxxxxxx X. XxXxxxxx		20,000		0		0		0		0	Y
101.	Xxxxxx X. Xxxxxxxxx		195,000		0		0		0		0	—
102.	Xxxxxx Xxxxxxx		0		26,316		0		0		0	—
103.	Xxxxx Xxxxxxxx		10,666		0		0		0		0	—
104.	Xxxxxxx X. Xxxx		195,000		0		0		0		0	—
105.	Xxxxxxx X. Xxxx, as Trustee of The Mayo Children’s 2000 Irrevocable Trust dated July 13, 2000		100,000		0		0		0		0	—
106.	Xxxxxxx X. Xxxxxxxx, M.D.		0		0		0		0		16,667	Y
107.	Xxxxxxx Xxxxxxxx		0		52,632		33,333		0		0	Y
108.	Xxxxxxx Xxxxxx		0		65,790		101,081		33,000		0	Y
109.	Xxxxxxx Xxxxxx		42,664		0		0		0		0	—
110.	Wilshire Investors, LLC		42,664		0		0		0		0	—

	TOTALS:		2,767,156		962,101		1,619,127		365,996		563,415

*** IMPORTANT*** *** RETURN IMMEDIATELY ***Please sign and return via electronic delivery to xxxxxxxxxx@xxxxx.xxx, or via facsimile lo Xxxxxxx X. XxXxxxxxx, Esq. at (000) 000-0000. SIGNATURE PAGE TO WRITTEN CONSENT OF THE HOLDERS OF A MAJORITY OF THE CAPITAL STOCK AND PREFERRED STOCK WARRANTS OF XSTREAM SYSTEMS, INC, The undersigned stockholder of XStream Systems, Inc. hereby adopts the resolutions set forth in this Majority Written Consent and authorized its attachment as a counterpart to each of the First Amendment to Series B Warrant, the First Amendment to Series C Warrant, the First Amendment to Series D Warrant, the First Amendment to Securityholders’ Agreement, and the First Amendment to Registration Rights Agreement, as appropriate. Majority Written Consent executed by the undersigned Stockholder as of 2009. If an Entity: Name of Stockholder (please PRINT) By: Name: Title: Address: Telephone: Facsimile: If an Individual (or if stock is held as Joint Tenants, Tenants in Common or as Community Property): Name of Stockholder (please PRINT) Signature of Stockholder Signature of Joint Tenant, Tenant in Common or other co-owner, if any: Name of Stockholder (please PRINT) Signature of Stockholder Address: Telephone: ( ) Facsimile: ( ) TO BE .COMPLETED BY COMPANY: Number of Shares of Common Stock Owned: Number: of Shares of Series A Preferred Stock Owned : Number of Shares of Series B Preferred Stock Owned: Number of Shares of Series C Preferred Stock Owned: Number of Shares of Series D Preferred Stock Owned: Number of Series B Warrants Owned: Number of Series C Warrants Owned: Number of Series D Warrants Owned:

Please execute and date and immediately return the enclosed signature page to this majority written consent of the stockholders by hand post, electronic mail or facsimile to: Xxxxxxx XxXxxxxxx, Esp. Xxxxxxxxx Xxxxxxx, P.A 0000Xxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxx Xxxxx, Xxxxxxx 00000 xxxxxxxxxx@xxxxx.xxx (000) 000-0000 (facsimile) if you have any question regarding this written consent or the materials referenced jereom, please contact xxxxxxxx xxxxxx, cheif financial officer, by telephone on x0-000-000-0000 or by email at x.xxxxxx@xxxxxxxxxxxxxx.xxx *** IMPORTANT*** *** RETURN IMMEDIATELY ***Please sign and return via electronic delivery to xxxxxxxxxx@xxxxx.xxx, or via facsimile lo Xxxxxxx X. XxXxxxxxx, Esq. at (000) 000-0000. SIGNATURE PAGE TO WRITTEN CONSENT OF THE HOLDERS OF A MAJORITY OF THE CAPITAL STOCK AND PREFERRED STOCK WARRANTS OF XSTREAM SYSTEMS, INC, The undersigned stockholder of XStream Systems, Inc. hereby adopts the resolutions set forth in this Majority Written Consent and authorized its attachment as a counterpart to each of the First Amendment to Series B Warrant, the First Amendment to Series C Warrant, the First Amendment to Series D Warrant, the First Amendment to Securityholders’ Agreement, and the First Amendment to Registration Rights Agreement, as appropriate. Majority Written Consent executed by the undersigned Stockholder as of 2009. If an Entity: Name of Stockholder (please PRINT) By: Name: Title: Address: Telephone: Facsimile: If an Individual (or if stock is held as Joint Tenants, Tenants in Common or as Community Property): Name of Stockholder (please PRINT) Signature of Stockholder Signature of Joint Tenant, Tenant in Common or other co-owner, if any:

*** IMPORTANT*** *** RETURN UMMEDIATELY *** Please sign and return via electronic delivery to xxxxxxxxxx@xxxxx.xxx, or via facsimile to Xxxxxxx X. XxXxxxxxx, Esq. at (000) 000-0000. SIGNATURE PAGE TO WRITTEN CONSENT OF THE HOLDERS OF A MAJORITY OF THE CAPITAL STOCK AND PREFERRED STOCK WARRANTS OF XSTREAM SYSTEMS, INC. The undersigned stockholder of XStream Systems, Inc. hereby adopts the resolutions set forth in this Majority Written Consent and authorized its attachment as a counterpart to each of the First Amendment to Series B Warrant, the First Amendment to Series C Warrant, the First Amendment to Series D Warrant, the First Amendment to Securityholders’ Agreement, and the First Amendment to Registration Rights Agreement, as appropriate. Majority Written Consent executed by the undersigned Stockholder as of , 2009. If an Entity: If an individual (or if stock is held as Joint Tenants, Tenants in Common or as Community Property): Name of Stockholder (please PRINT) Name of Stockholder (please PRINT) By: Name: Signature of Stockholder Title: Address: Signature of Joint Xxxxxxx, Tenant in Common or other co-owner, if any: Telephone: Name of Stockholder (please PRINT) Facsimile: Signature of Stockholder Address: Telephone: Facsimile: TO BE COMPLETED BY COMPANY: Number of Shares of Common Stock Owned: Number of Shares of Series A Preferred Stock Owned: Number of Shares of Series B Preferred Stock Owned: Number of Series B Warrants Owned: Number of Shares of Series C Preferred Stock Owned: Number of Series C Warrants Owned: Number of Shares of Series D Preferred Stock Owned: Number of Series D Warrants Owned:

Please execute and date, and immediately return, the enclosed signature page to this Majority Consent of the Stockholders by hand, post, electroic mail or facsimile to: Xxxxxxx Xxxxxxxxx, Esq. Greenbcrg Traurig, P.A. 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxx Xxxxx, Xxxxxxx 00000 distefanor@gtlaw, com (000) 000-0000 (facsimile) If you have any questions regarding this Written Consent or the materials referenced herein, please contact Christie Bustler, Chief Financial Officer, by telephone on x0 - 000-000-0000 or by email at x.xxxxxx@xxxxxxxxxxxxxxx.xxx. (signatures on next page) *** IMPORTANT*** *** RETURN UMMEDIATELY *** Please sign and return via electronic delivery to xxxxxxxxxx@xxxxx.xxx, or via facsimile to Xxxxxxx X. XxXxxxxxx, Esq. at (000) 000-0000. SIGNATURE PAGE TO WRITTEN CONSENT OF THE HOLDERS OF A MAJORITY OF THE CAPITAL STOCK AND PREFERRED STOCK WARRANTS OF XSTREAM SYSTEMS, INC. The undersigned stockholder of XStream Systems, Inc. hereby adopts the resolutions set forth in this Majority Written Consent and authorized its attachment as a counterpart to each of the First Amendment to Series B Warrant, the First Amendment to Series C Warrant, the First Amendment to Series D Warrant, the First Amendment to Securityholders’ Agreement, and the First Amendment to Registration Rights Agreement, as appropriate. Majority Written Consent executed by the undersigned Stockholder as of , 2009. If an Entity: If an individual (or if stock is held as Joint Tenants, Tenants in Common or as Community Property): Name of Stockholder (please PRINT) Name of Stockholder (please PRINT) By: Name: Signature of Stockholder Title: Address: Signature of Joint Xxxxxxx, Tenant in Common or other co-owner, if any:

XSTREAM SYSTEMS, INC.

/s/ Xxxxxxx Xxxxxxx

Xxxxxxx Xxxxxxx