EXHIBIT 10.9
AMENDMENT NO. 2
TO
AMENDED AND RESTATED REGISTRATION RIGHTS,
RESTRICTED STOCK AND STOCK OPTION AGREEMENT
THIS AMENDMENT NO. 2 is dated as of August 19, 1991, among Adra Systems,
Inc., a Delaware corporation ("Company"), Digital Equipment Corporation, a
Massachusetts corporation ("DEC") and those other parties listed as Stockholders
on the signature pages hereto (the "Stockholders").
WHEREAS, the Company and the Stockholders are parties to a certain Amended
and Restated Registration Rights, Restricted Stock and Stock Option Agreement,
dated as of October 11, 1988, as amended by Amendment No. 1, dated as of June
26, 1991 (the "Agreement"); and
WHEREAS, pursuant to a stock purchase agreement (the "Stock Purchase
Agreement") dated the date hereof, DEC is purchasing 400,000 shares (the
"Purchased Shares") of the Company's Class F Convertible Preferred Stock, $1.00
par value (the "Class F Preferred Stock"); and
WHEREAS, as a condition to entering into the Stock Purchase Agreement, DEC
has requested and the Company desires to grant registration rights with respect
to the Purchased Shares to the same extent as such rights were granted and are
in effect with respect to the holders of the Company's Class D Convertible
Preferred Stock; and
WHEREAS, the Company and the Stockholders desire to amend the Agreement as
hereinafter set forth and DEC desires to become a party to the Agreement as
amended hereby;
NOW, THEREFORE, the parties agree as follows:
1. All capitalized terms used in this Amendment No. 2 not otherwise
defined herein shall have the meaning given to them in the Agreement. For
purposes of any notice to be sent to DEC under the Agreement, notice shall be
deemed given when delivered in accordance with Section 8.01 of the Stock
Purchase Agreement.
2. Section 1.27 of the Agreement is hereby amended and restated in its
entirety to read as follows:
"1.27 `Stock' means the Class A Preferred Stock, the Class B Preferred
Stock, the Class C Preferred Stock, the Class D Preferred Stock, the Class E
Preferred Stock and the Class F Preferred Stock, any Common Stock issued on
conversion of any of the Class A Preferred Stock, the Class B Preferred Stock,
the Class C Preferred Stock, the Class D Preferred Stock, the Class E Preferred
Stock or the Class F Preferred Stock, any Common Stock issued upon exercise of
any of the 1984 Options, the 1985 Options, the 1987 Options, the 1988 Options
or the 1988 E Options, any Common Stock issued upon exercise of any Warrant
issued pursuant to a certain Note and Warrant Purchase Agreement among the
Company and certain investors dated as of October 16, 1987, any shares of Merger
Common Stock, and any equity security of the Company issued as a dividend or
distribution thereon or in exchange therefor or upon conversion thereof (whether
such stock is held by a Stockholder or its assignees, other than persons
acquiring shares of stock in an underwritten pubic offering), but not to other
stock of the same class or of any other class which is now or hereafter may be
outstanding."
3. Section 1.28 of the Agreement is hereby amended by adding to the end
thereof the following:
"and shall include Stockholders who become a party to this Agreement by
amendment hereto. DEC shall be a Stockholder for all purposes of this
Agreement."
4. Article I of the Agreement is hereby amended by adding the following
sections:
"Section 1.32 `DEC' means Digital Equipment Corporation, a
Massachusetts corporation.
"Section 1.33 `Class F Preferred Stock' means the Class F Convertible
Preferred Stock, $1.00 par value, of the Company issued pursuant to the Class F
Purchase Agreement.
"Section 1.34 `Class F Purchase Agreement' means the Class F Preferred
Stock Purchase Agreement, dated the date of Amendment No. 2 to this Agreement,
between the Company and DEC."
5. By executing this Amendment No. 2, DEC hereby becomes a party to the
Agreement and shall be bound by all of the obligations and shall be entitled to
all of the rights set forth therein, as amended by this Amendment No. 2. For
purposes of Section 3.2 of the Agreement, DEC corporate counsel shall be
acceptable to the Company.
6. Except as amended by the provisions of this Amendment No. 2, the
Agreement shall remain in full force and effect.
7. This Amendment No. 2 shall become effective upon execution by the
Company, DEC and by Stockholders holding a majority of the aggregate outstanding
shares of Class A Preferred Stock, Class B Preferred Stock, Class C Preferred
Stock, Class D Preferred Stock, Class E Preferred Stock and the Merger Common
Stock.
8. This Amendment No. 2 may be executed in any number of counterparts,
each of which shall be deemed to be an original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
ADRA SYSTEMS, INC.
[CORPORATE SEAL]
By: /s/ Authorized Signatory
----------------------------
Title:
STOCKHOLDERS
------------
DIGITAL EQUIPMENT CORPORATION
By: /s/ Xxxx Xxxxxxxx
----------------------------
Title:
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxx Xxxxx
-------------------------------
Xxxxx Xxxxx
XXXXXX, HOLLAND FUND, L.P.
By its general partner,
Xxxxxx, Xxxxxxx Partners
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Managing General Partner
NEW COURT PARTNERS
By its managing partner,
OneRock Associates
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Managing Partner
ARROW CAPITAL, N.V.
By: Rothschild Inc.
Under P/O/A dated 4/17/91
By: /s/ Xxxxx X. X'Xxxxx
----------------------------
Under P/O/A dated 5/31/91
ARROW PARTNERS C.V.
By: Rothschild Inc.
Under P/O/A dated 5/01/91
By: /s/ Xxxxx X. X'Xxxxx
----------------------------
Under P/O/A dated 5/31/91
ROTHSCHILD INC., as Agent
for Horizon Capital
By: /s/ Xxxxx X. X'Xxxxx
----------------------------
Senior Vice President
THE XXXXXX XXXXX FUND
By: /s/ Authorized Signatory
----------------------------
AMERICAN RESEARCH &
DEVELOPMENT I, L.P.
By its general partner,
ARD Partners I, L.P.
By: /s/ Authorized Signatory
----------------------------
General Partner
VENTURE FOUNDERS 1983,
LIMITED PARTNERSHIP
By its general partner,
Venture Management Limited
Partnership
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
General Partner
VENTURE FOUNDERS CAPITAL
LIMITED PARTNERSHIP
By its general partner,
Venture Founders Partners
Limited Partnership
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
OXFORD VENTURE FUND II,
LIMITED PARTNERSHIP
By its general partner,
Oxford Partners II,
Limited Partnership
By: /s/ Authorized Signatory
----------------------------
Title: General Partner
OXFORD VENTURE FUND III,
LIMITED PARTNERSHIP
By its general partner,
Oxford Partners III,
Limited Partnership
By: /s/ Authorized Signatory
----------------------------
Title: General Partner
EVERGREEN I LIMITED PARTNERSHIP
By its general partner,
Back Bay Partners, L.P.
by one of its general partners,
Xxxx Xxxxxxx Venture Capital
Management Inc.
By: /s/ Authorized Signatory
----------------------------
Title: Vice President & Treasurer
DSV PARTNERS III, L.P.
By: /s/ Authorized Signatory
----------------------------
Title: General Partner
DSV PARTNERS IV, L.P.
By DSV Management, Ltd.
its General Partner
By: /s/ Authorized Signatory
----------------------------
Title: General Partner
BERKSHIRE PARTNERS, L.P.
By: /s/ Authorized Signatory
---------------------------
Title:
BERKSHIRE PARTNERS II, L.P.
By: /s/ Authorized Signatory
----------------------------
Title:
A T COMMERCIAL CORPORATION
By: /s/ DC Molten
------------------
Title: VP & Manager
ACCEL CAPITAL L.P.
By Accel Associates L.P.
Its General Partner
By: /s/ Authorized Signatory
----------------------------
Title: General Partner
ACCEL CAPITAL (INTERNATIONAL) L.P.
By Accel Associates (International) L.P.
Its General Partner
By: /s/ Authorized Signatory
----------------------------
Title: General Partner
ASEA-Harvest Partners I
By: /s/ Authorized Signatory
----------------------------
Title: General Partner
BNP VENTURE CAPITAL CORPORATION
By: /s/ Authorized Signatory
----------------------------
Title:
XXXXXX CAPITAL CORP.
By: /s/ Authorized Signatory
----------------------------
Title: President
XXXXXXX X. XXXXXXXXX PARTNERS
By: /s/ Authorized Signatory
----------------------------
Title:
ELRON TECHNOLOGIES, INC.
By: /s/ Authorized Signatory
----------------------------
Title:
EUROPEAN DEVELOPMENT
CAPITAL CORP. N.V.
By: /s/ Authorized Signatory
----------------------------
Title:
FAIRFIELD VENTURE CAPITAL
FUND, L.P.
By: Fairfield Venture Partners
L.P.
Its General Partner
By: /s/ Authorized Signatory
----------------------------
Title:
XXXX XXXXXXX VENTURE CAPITAL
FUND, L.P.
By: Xxxx Xxxxxxx Venture Capital
Management, Inc.
By: /s/ Authorized Signatory
----------------------------
Title: Vice President & Treasurer
XXXXXXXXXX BRIDGE FUND II, L.P.
By: Xxxxxxxxxx Securities
Its General Partner
By: /s/ Authorized Signatory
----------------------------
Title:
XXXXXXXXXX BRIDGE INVESTMENTS
LIMITED
By: Xxxxxxxxxx Securities
Its General Manager
By: /s/ Authorized Signatory
----------------------------
Title:
XXXXXXXXXX PRIVATE INVESTMENTS
PARTNERSHIP
By: Xxxxxxxxxx Securities
Its General Manager
By: /s/ Authorized Signatory
----------------------------
Title:
NORDIC INVESTORS, LTD.
By:
By: /s/ Authorized Signatory
----------------------------
Title: Attorney-in-Fact
NORO CAPITAL LTD.
By:
By: /s/ Authorized Signatory
----------------------------
Title: General Partner
NORO VENTURE PARTNERS IV
By:
By: /s/ Authorized Signatory
----------------------------
Title: General Partner
IAI VENTURE PARTNERS
By: Investment Advisers, Inc.
Its General Partner
By: /s/ Authorized Signatory
----------------------------
Title:
IAI STOCK FUND, INC.
By: /s/ Authorized Signatory
----------------------------
Title:
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxxx Xxxx
-------------------------------
Xxxxxxxx Xxxx
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxx Xxxxx
-------------------------------
Xxxxx Xxxxx
/s/ Xxxx X. Xxxx
-------------------------------
Xxxx X. Xxxx
/s/ Xxxxxxx Xxxxxxx
-------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx, Jr.
-------------------------------
Xxxxxx Xxxxxxx, Jr.
PROCORDIA HARVEST PARTNERS I
By:
By: /s/ Authorized Signatory
----------------------------
Title:
767 VCI VENTURES NV
By:
By: /s/ Authorized Signatory
----------------------------
Title: Attorney In Fact
XXXXXX FAMILY PARTNERSHIP
By:
By: /s/ Jameds X. Xxxxxx
----------------------------
Title: General Partner
/s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
VENAD II
By: Xxxxx & Company
By: /s/ Xxxx Xxxxxxxx, /s/ Xxxxx Xxxxxxx
-------------------------------------
Title:
VENAD III
By:
By: /s/ Xxxx Xxxxxxxx, /s/ Xxxxx Xxxxxxx
-------------------------------------
Title:
VENAD IV
By:
By: /s/ Xxxx Xxxxxxxx, /s/ Xxxxx Xxxxxxx
-------------------------------------
Title:
VENAD IV-A
By:
By: /s/ Xxxx Xxxxxxxx, /s/ Xxxxx Xxxxxxx
-------------------------------------
Title:
/s/ Xxxxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxx
/s/ Xxxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxxx
ADAGE GMBH
By: /s/ Authorized Signatory
------------------------------------
Title:
